Supreme Court of Tasmania|2003-09-15|Before: Blow J

R v Resource Planning and Development Commission; Ex parte Dorney (No 3) [2003] TASSC 84 (15 September 2003)

CITATION: R v Resource Planning and Development Commission;

Ex parte Dorney (No 3) [2003] TASSC 84

FILE NO/S: M43/2002, M44/2002, M45/2002, M46/2002

Administrative Law - Judicial review legislation - Commonwealth, Queensland, Tasmania and Australian Capital Territory - Powers and discretion of court - Other matters - Directions - Prohibition of further consideration by original decision-makers.

Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637; Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39; Steedman v Baulkham Hills Shire Council (1993) 31 NSWLR 562; Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186, referred to.

First Respondent: Director of Public Prosecutions

Judgment Number: [2003] TASSC 84

THE QUEEN v RESOURCE PLANNING AND DEVELOPMENT COMMISSION;

Ex parte PATRICK ESMOND DORNEY AND LEE BARBARA EWING

as personal representatives of estate of J H E DORNEY

THE QUEEN v RESOURCE PLANNING AND DEVELOPMENT COMMISSION;

ANDREW PETER JEVTIC AND KAYE JEVTIC v RESOURCE PLANNING

AND DEVELOPMENT COMMISSION AND HOBART CITY COUNCIL

THE QUEEN v RESOURCE PLANNING AND DEVELOPMENT COMMISSION;

CAROLINE MAY GRAVES v RESOURCE PLANNING AND DEVELOPMENT COMMISSION AND HOBART CITY COUNCIL

THE QUEEN v RESOURCE PLANNING AND DEVELOPMENT COMMISSION;

Ex parte EDWARD GEORGE ALLEN AND LYNDALL JANE HANNAFORD

EDWARD GEORGE ALLEN AND LYNDALL JANE HANNAFORD v

1 These proceedings concern Amendment 6/99 to the City of Hobart Planning Scheme 1982 ("the planning scheme"). I held on 11 August 2003 that a decision made on 29 November 2001 by two delegates of the Resource Planning and Development Commission ("the Commission") should be quashed, and that a subsequent decision of the Commission to give approval to the draft amendment should be set aside. I adjourned the proceedings until 21 August 2003 for the making of submissions by counsel as to the terms of the final orders. Details of the relevant legislative provisions, and of the errors made by the two delegates, appear in the reasons that I published on 11 August: R v Resource Planning and Development Commission; Ex parte Dorney (No 2) [2003] TASSC 69. I need not repeat all that I said in those reasons.

2 When these matters came before on 21 August, Mr Ellis SC made a surprisingly late submission to the effect that I had no power to make a quashing order under the Supreme Court Rules 2000, r627(2)(a). He submitted that that provision had become ultra vires as a result of the provisions as to prerogative writs in the Supreme Court Civil Procedure Act 1932, PtVII, having been repealed by the Judicial Review Act 2000. That submission was misconceived, since the Court's jurisdiction to grant relief in the nature of certiorari was conferred by the Australian Courts Act 1828 (Imp), ss3 and 11, which remain in force. However it was not necessary to rule on that submission because counsel for the prosecutors, Mr Spence, invoked the Court's equitable jurisdiction and sought a declaration that the delegates' decision of 29 November 2001 was void ab initio, Mr Ellis SC conceded that he could not oppose the granting of such a declaration, and I made such a declaration in each of the proceedings in which the decision of 29 November 2001 had been challenged. In each of the proceedings in which the decision of 13 February 2002 was challenged, I made an order quashing that decision. All counsel agreed that it was necessary for the draft amendment to be referred back to the Commission for further consideration.

3 I reserved my decisions in relation to two applications that were made orally on 21 August. The first was an application made by counsel for the Hobart City Council ("the Council"), Mr McElwaine, for a direction pursuant to the Judicial Review Act, s27(1)(b), to the effect that, when the Commission gives further consideration to the draft amendment, such further consideration is not to be given by the original delegates. The second application was one made by Mr McElwaine for an order that the applicants/prosecutors and the Commission pay the Council's costs.

4 The power to give directions in relation to a matter referred back to a decision-maker following a successful appeal is derived from the Judicial Review Act, s27(1), which reads as follows:

"27 - (1) On an application for an order of review relating to a decision, the Court may make all or any of the following orders:

(a) an order quashing or setting aside the decision, or a part of the decision, with effect from -

(ii) if the Court specifies the day of effect, the day specified by the Court (which may be before or after the day of the making of the order);

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions (including the setting of time limits for the further consideration, and for preparatory steps in the further consideration) as the Court determines;

(c) an order declaring the rights of the parties relating to any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing, anything that the Court considers necessary to do justice between the parties."

5 That subsection is modelled on the Administrative Decisions (Judicial Review) Act 1977 (Cth), s16(1). The High Court considered the scope of the powers conferred by s16(1) in Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637 at 644, saying the following:

"The legislative purpose to be discerned in the conferral by s16(1)(c) and (d) of power to grant declaratory and injunctive relief in addition to the power to quash or set aside (with effect from a specified date) an impugned decision is clear. It is to allow flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will achieve what is 'necessary to do justice between the parties' (s16(1)(d)) and which will avoid unnecessary re-litigation between the parties of those issues. The scope of the powers to make orders which the sub-section confers should not, in the context of that legislative purpose, be constricted by undue technicality."

6 I think it follows that Tasmania's s27(1) should be interpreted widely. As with the Commonwealth's s16(1), the scope of the powers to make orders pursuant to the subsection should not be constricted by undue technicality. I therefore take the view that the power conferred by s27(1)(b) to give directions as to the further consideration of a matter by the original decision-maker is wide enough to allow the Court, when appropriate, to direct that a decision-making body be differently constituted when it reconsiders a matter, or that certain members or delegates not participate in the giving of further consideration to a matter.

7 Mr McElwaine submitted that it was inappropriate for the original delegates to take part in the further consideration of the draft amendment by the Commission since (a) they had made findings and expressed views as to the merits in relation to important aspects of the draft amendment, and (b) the Commission had taken an active part in these proceedings and argued against the making of the orders sought and obtained by the applicants/prosecutors. As to the latter point, he submitted that the position taken by the Commission was extraordinary, and that a body in its position would normally submit to the orders of the Court, whereas the Commission had actively opposed the quashing of the decisions made by it and its delegates, and actively supported the applicants/prosecutors in their contentions that they should be entitled to compensation pursuant to the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s66. He referred me to R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, in which the High Court said the following at 35 - 36:

"Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal."

8 It is true that, except in relation to the compensation issue, the Commission was the only contradictor that opposed the orders sought by the applicants/prosecutors. In such a situation, however, I think it is preferable for the Attorney-General to intervene and take on the role of a contradictor. That is preferable to a statutory authority with a quasi-judicial role becoming a protagonist in the sort of situation the High Court was referring to. It is also true that the argument before me as to the distinction between the modification of a draft amendment and the alteration of a draft amendment to a substantial degree was one that related to the powers of the Commission - a subject which the High Court considered might sometimes warrant participation by a statutory authority in litigation. However the other issues, including the question whether the delegates' conduct was inconsistent with procedural fairness, and the compensation issue, were not in that category.

9 I have no information as to whether the two delegates, or either of them, were to any extent responsible for the Commission participating actively in the proceedings before me. The only direction sought by Mr McElwaine as to who should or should not undertake the process of giving the draft amendment further consideration was a direction concerning the two original delegates. It follows that the Commission's conduct in this litigation is of little consequence in relation to the application for a direction concerning them.

10 The Commission and the applicants/prosecutors opposed the application for a direction prohibiting the original delegates from further considering the matter of the draft amendment. Mr Ellis SC submitted on behalf of the Commission that the appropriate test was whether there would be a reasonable apprehension of bias. Mr Spence submitted that if anyone was aggrieved, it would be his clients, but that they had no difficulty with the delegates.

11 It is clear that original delegates must not take any further part in the consideration of the draft amendment if a fair-minded lay observer might reasonably apprehend that they might not bring impartial minds to the decision-making process: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294; R v Watson; ex parte Armstrong [1976] HCA 39; (1977) 136 CLR 248; R v Lusink; ex parte Shaw (1981) 55 ALJR 12; Re JRL; ex parte CRL [1986] HCA 39; (1986) 161 CLR 342; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v R [1994] HCA 30; (1994) 181 CLR 41; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Ebner v Official Trustee (2000) 205 CLR 377; Seablest Pty Ltd v Smith [1997] TASSC 36; (1997) 6 Tas R 350 at 361.

12 Given the nature and context of s27(1)(b), there is no reason to confine the power to give directions as to the participants in the process of giving further consideration to a matter to cases where individuals should be disqualified on the basis of a reasonable apprehension of bias. In my view there may be cases when it is appropriate for this Court to make an order under s27(1)(b) directing the reconstitution of a decision-making authority for other reasons. Often it would be inappropriate for the Court to give any direction as to the future constitution of a tribunal or administrative authority, for the reasons discussed by the High Court in Minister for Immigration and Multicultural Affairs v Wang (2003) 77 ALJR 786. In that case the High Court pointed out the disadvantages of a court, after allowing an appeal, remitting the matter to the appropriate tribunal "as originally constituted" for re-determination.

13 However there is a body of authority that suggests that it will sometimes be appropriate to exercise a power to direct reconstitution in circumstances where the common law would not require the original decision-makers to disqualify themselves on the ground of a reasonable apprehension of bias. In Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, a judge had set aside a decision of the Australian Broadcasting Tribunal, constituted by a single member thereof, and referred the matter back to that tribunal with a direction that that member not conduct the rehearing. On appeal to the Full Court, it was held that a direction for the Tribunal to be reconstituted was appropriate, even though the case did not fall within the scope of the common law authorities as to disqualification for apprehended bias. At 42 - 43, Davies and Foster JJ, with whom Burchett J agreed, said the following:

"If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon the facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as original constituted could be worthless, for the member's views have been stated.

... His Honour concluded that as 'the Tribunal's consideration of the matter was extensive, far-reaching and lengthy' and as 'strong views on the applicant's compliance with the requisite criteria' had been expressed, it would better achieve the object of having the matter heard and decided again that the Tribunal should be differently constituted. Such a finding imports no criticism whatsoever of the member who originally constituted the Tribunal but simply recognises that, when decisions in judicial and administrative proceedings are set aside in toto and the matter remitted to be heard and decided again, justice is in general better seen to be done if the court or the Tribunal is reconstituted for the purposes of the rehearing."

14 Kirby P (as he then was) referred to that judgment with approval in Steedman v Baulkham Hills Shire Council (1993) 31 NSWLR 562 at 577. At 576, his Honour said this:

"Normally this Court, when remitting a matter to a Division of the Supreme Court or another court or tribunal subject to its authority, will not interfere with the assignment of the hearing to a particular person. That is left to the internal arrangements of the Division, court or tribunal concerned. In special circumstances an appellate court may direct that the court or tribunal below be differently constituted."

Meagher JA agreed with that part of the judgment of Kirby P: ibid at 577. However the comments of Kirby P were obiter.

15 In Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186 at par48, Beazley, Giles and Santow JJA appear to have taken the view that circumstances other than a reasonable apprehension of bias can warrant a direction for reconstitution, though their comments were obiter. Their Honours were not concerned with administrative decision-making, but with the disposal of defamation proceedings following a successful appeal as to the quantum of damages. After referring to a number of cases including Northern NSW FM and Steedman, their Honours said:'

"But there is no basis in the present circumstances for any reasonable apprehension of bias, or even concern short of that, which would render it inappropriate for Levine J to conduct the new trial ...". [Emphasis added.]

16 When the delegates made their decision of 29 November 2001, they had reached concluded and final views as to how the planning scheme should be amended by the draft amendment. The delegates purported to exercise the power conferred by the LUPA Act, s41(a), to require the Council to modify the draft amendment. If their decision had not been invalidated by error, the subsequent steps required to be taken in relation to the draft amendment would have been purely mechanical. The Council would have been required to formulate the modification of the draft amendment under s41A(2). The Commission would have had to satisfy itself that the draft amendment, as modified by the Council, was in order, and then would have had to give its approval to it: s42(1). The chairperson of the Commission would then have had to sign it: s42(3)(a)(i). The substantial decision-making process would have been at an end at the time of the delegates' decision.

17 Thus, if further consideration is given to the draft amendment by the same delegates, anyone desirous of a significantly different outcome (and that could well include the Council, some landowners, and/or some other members of the public) would be aware of the delegates' original conclusions, and might not entertain any hope of the delegates reaching significantly different conclusions. In substance, the delegates decided that it was fair and appropriate for extreme restrictions to be placed on development in some 465.6ha of land in the Mount Nelson area, and for the owners of that land to be compensated by the Council pursuant to the LUPA Act, s66. Further, when I concluded that the delegates' decision should be quashed, I made findings that they had denied some landowners procedural fairness by failing to afford them an opportunity to be heard in relation to the decision that they were thinking of making, and subsequently did make. I also held that they erred in law by failing to make a decision which would have required the re-exhibition and re-advertising of the draft amendment, a fresh opportunity for the public to make representations, and one or more further hearings. Those findings would be likely to strengthen any apprehension that the delegates might not approach the reconsideration of the draft amendment with impartial minds. If they had seen the imposition of severe restrictions on development and the payment of compensation as a possible outcome worthy of further comment from landowners and the general public, and had on that basis required the Council to undertake an alteration of the draft amendment to a substantial degree, with the result that the processes concerning representations by the public would have been repeated, the only appropriate course would have been for them to have continued to consider the matter. But now they have expressed concluded views that were intended by them to be final, as well as denying some landowners procedural fairness, and making a decision that was impeachable partly because it required the Council to proceed in such a way that the public were denied their right to make further representations.

18 In Seablest (supra) at 361, Underwood J, after considering the facts of that case, said "To require the same members to approach a reconsideration untainted by their conclusions reached on the first occasion is an impossible task." Similarly, I think that to require the original delegates to undertake the further consideration of this draft amendment, untainted by the conclusions previously reached by them, would be an equally impossible task. I think it follows that a fair-minded lay observer might reasonably apprehend that the delegates might not bring impartial minds to the reconsideration of the draft amendment; that they would therefore be obliged to disqualify themselves; and that I should therefore direct that they not participate in such reconsideration.

19 Even if I am wrong in my conclusion as to a reasonable apprehension of a lack of impartiality, I think this is a case where it would be appropriate to make a direction requiring that the reconsideration be undertaken by different decision-makers in accordance with the principles discussed by Davies and Foster JJ in Northern NSW FM (supra). Like the tribunal proceedings discussed by Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Wang (supra) at 799 - 800 (pars71 - 78), the proceedings before the Commission or its delegates are non-adversarial, with no opposing parties, and with no issues joined. Since the decision of 29 November 2001, some properties may have changed hands, and there may well have been other changes of circumstances. Even if the original delegates continued in their roles, it would probably be necessary for them to invite further submissions from the public, and conduct a further hearing, in order to give proper consideration to the draft amendment. Because of those circumstances, I think it is appropriate to direct that they not undertake that reconsideration, even if this is not a situation where the common law requires them to disqualify themselves.

20 In each of matters M44/2002, M46/2002, M48/2002 and M50/2002, I therefore order that the matter of the draft amendment be referred to the first respondent for further consideration, subject to a direction that such further consideration is not to be undertaken or participated in by Richard Carter Southee or John Vandenberg.

21 The Council participated only in parts of the proceedings before me. I first received evidence and submissions as to the question whether compensation would be payable under the LUPA Act, s66, if the challenged decisions were not quashed or set aside. The Council alone contended that compensation would not be payable. It was ultimately successful on that issue. After I had heard the final submissions concerning the availability of compensation and reserved my decision on that issue, there was a dispute as to whether I should make a preliminary determination as to that issue. The Council alone contended that I should not. The applicants/prosecutors and the Commission contended that I should. The Council was successful. Thereafter, Mr McElwaine obtained leave to withdraw, and the Council did not participate in the rest of the hearing. The Council has thus been entirely successful in those parts of the hearing in which it participated. Ordinarily it would follow that one or more of the unsuccessful litigants should be ordered to pay its costs.

22 Mr Spence submitted that the applicants/prosecutors should not have to pay the Council's costs. He pointed out that, at one stage during the hearing before the delegates, the Council unambiguously conceded that a proposal less drastic than that eventually decided upon by the delegates would give rise to an entitlement to compensation pursuant to s66, and that the delegates relied upon that acknowledgement by the Council in reaching their decision of 29 November 2001. He also pointed out that, although I ruled in favour of the Council on the s66 issue, I had rejected one of its arguments, which concerned the interpretation of Schedule L to the planning scheme - a schedule that was created as a result of the delegates' decision.

23 Mr Spence further submitted that, in the event of my ordering his clients to pay any costs of the Council, I should make an order that the Commission indemnify his clients in respect of such costs. By that stage he had sought an order that the Commission pay his clients' costs, Mr Ellis SC had made no submissions as to that application, and I had made such an order.

24 Mr Ellis SC submitted that, in relation to the availability of compensation, the delegates had been led into error by the Council. He pointed out that the Council had not taken any proceedings to challenge the decisions of the Commission and its delegates, and submitted that the Council had conducted itself as if content with those decisions, but I think those matters are insignificant, since there was no need for the Council to challenge those decisions after the applicants/prosecutors had commenced proceedings.

25 It is true that the Council once made an erroneous submission to the delegates as to the availability of compensation but, even if that resulted in error on the delegates' part, I do not think that should have any impact in relation to the costs of these proceedings. The Council realised it had made a mistake. Its contentions as to the availability of compensation were made known to the adverse parties, and were correct. Had the adverse parties taken a correct view of the law concerning s66, the costs of litigating that issue could have been avoided. The submissions as to Schedule L did not take long, and were not so unmeritorious as to warrant a departure from the ordinary rule that costs should follow the event, in my view. The Council has been wholly successful in these proceedings, to the extent that it participated in them, and I see no reason why it should not recover its costs. But from whom?

26 The applicants/prosecutors were aggrieved by the decisions of the Commission and its delegates. Had the applicants/prosecutors taken a correct view as to the availability of compensation, it would still have been necessary for that issue to have been determined, since the error of the delegates as to the availability of compensation was one of the matters that made it appropriate for their decision to be quashed or declared void. The applicants/prosecutors are successful parties in this litigation. The Commission is the only unsuccessful party. That is why I ordered the Commission to pay the applicants/prosecutors' costs. I see no reason why, as between the applicants/prosecutors and the Commission, the burden of the Council's costs should not fall on the Commission. There is no reason for me to make an order whereby the applicants/prosecutors would become conduits for costs to flow from the Commission to the Council. I will therefore make orders for the Commission to pay the Council's costs.

27 In each of matters M43/2002, M45/2002, M47/2002, and M49/2002, I order that the defendant pay the costs of the Hobart City Council. In matters M44/2002, M46/2002, M48/2002 and M50/2002, I order that the first respondent pay the costs of the second respondent of and incidental to the originating application.

R v Resource Planning and Development Commission; Ex parte Dorney

At a glance

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Judgment (62 paragraphs)

R v Resource Planning and Development Commission; Ex parte Dorney (No 3) [2003] TASSC 84 (15 September 2003)

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Legislation Cited (1)

Cases Cited (14)