TAH LAND PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2022] WASC 219 (30 June 2022)

Supreme Court of WA|2022-06-30|Before: Tottle J

The applicant does not suggest that this is a case in which the Governor was or ought to have been involved in deliberations as to whether consent to the taking order should be given. The applicant acknowledges the effect of s 60 of the Interpretation Act 1984 (WA), that where there is a reference to the Governor doing some act, matter or thing, it will be taken to mean that such act, matter or thing shall be done by the Governor with the advice and consent of the Executive Council.
In relation to the general workings of the Governor in Council, I have been guided by the observations of Wilson J in FAI Insurances Ltd v Winneke:[6] It is unnecessary to repeat those observations in these reasons.
The applicant submits the inclusion in s 191(1) of the Planning and Development Act 2005 (WA) of a requirement for the Governor's consent to the taking order to be obtained, is a safeguard against the arbitrary exercise of power by the executive, and that being so, if it is to operate as an effective safeguard, it implies an obligation to accord procedural fairness to the land owner.
The respondents' answer to that submission is to say that as a matter of statutory interpretation, no such obligation of procedural fairness arises. They contend that the stage of the process at which procedural fairness was required to be given was the reservation of the intersection land under the Metropolitan Regional Scheme in 1994 and that there is nothing in the statutory framework that suggests that the land owner should be afforded an opportunity to make submissions before recommending and seeking the Governor's consent.

Respondent's claim for public interest immunity privilege

Notwithstanding that each side made detailed and helpful written submissions, it is both proper and preferable to determine any claims for public interest immunity after a list of the relevant documents has been produced and the claims for public interest immunity are articulated in the conventional way in an affidavit. I will make orders to that effect.

Respondents' claim for legal professional privilege

I propose to take a pragmatic approach to dealing with the claims for legal professional privilege. The documents should be made available to me, and after I have inspected them, I will make rulings in relation to the claims.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Perpetual Trustees WA Ltd v The City of Joondalup [1999] WASCA 108.

[2] Singh v Friedman [2013] WASC 78 [3] - [4].

[3] Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282 [92].

[4] Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282.

[5] Canwest Global Communications Corporation v Australian Broadcasting Authority (1997) 24 ACSR 405, 415.

[6] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 400 - 401.

Development Act 2005

After referring to and discussing the decision of a Full Court of the Federal Court in WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175, his Honour said, at 412:

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