Procedure - Contempt - Inherent jurisdiction - Supreme Court Rules O 55

Town Planning and Development - Land reserved under the Metropolitan Region Town Planning Scheme Act 1958 - Refusal of Commission to approve diagrams and plans in relation to subdivision pending outcome of an appeal - Whether refusal amounts to contempt

Town Planning and Development Act 1928 (WA) s 20, s 20AA

Clarkson v the Mandarin Club Ltd (1998) 90 FCR 354

Doyle & Ors v The Commonwealth of Australia & Anor [1985] HCA 46; (1985) 156 CLR 510

Harkinakis v Skalkos (1997) 42 NSWLR 22

Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142

North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 908

1 This is the appellant's "amended chamber summons for mandatory injunction for contempt of court alternatively expedition of appeal" dated 5 September 2001.

2 The principal remedy which the appellant seeks is that the respondent be ordered to endorse its approval on certain diagrams/plans of survey relating to a subdivision in Singleton. The summons recites that the remedy is sought in order to prevent the first respondent ("the respondent") continuing to engage in conduct which is a contempt of this Court. In order to understand this allegation, it is necessary to set out the course of the appeal to date.

3 The appellant is the owner of certain land at Singleton. It sought subdivision approval in respect of three separate parcels of that land. The first application was to create what is referred to as a "super lot" of 16 hectares approximately with the remaining lot of approximately 63 hectares. The next application related to subdivision of a portion of the land in the south east into 23 residential lots and a balance lot, while the third application related to subdivision of a portion of land in the south west into 46 residential lots and a balance lot. In relation to each of those applications, the Western Australian Planning Commission approved the applications, but subject to a condition in each case, that the portion of land to the west, which was shown as a "reserve for recreation" under the Metropolitan Region Scheme, be vested in the Crown under s 20A of the Town Planning and Development Act 1928 (WA) ("the Act"), free of cost and without any payment of compensation by the Crown. An effect of the condition would be to avoid any payment of compensation for injurious affection of that portion of the foreshore land under the Metropolitan Region Town Planning Scheme Act 1959 (WA).

4 The appellant appealed to the Town Planning Appeal Tribunal, arguing that the condition did not fairly and reasonably relate to the approvals and was unreasonable. The Tribunal dismissed the appeal. There was then an appeal to this Court which was heard on an expedited basis by a single Judge and which was also dismissed. The applicant now seeks to appeal to the Full Court.

5 The Executive Director of the applicant has deposed that it carries on business solely as a developer of residential property in the Singleton area. In relation to the proposed super lot it deposes that Temwood received an offer to purchase that lot at a price substantially in excess of a valuation received by Temwood. It deposes that, prior to the appeal to the Town Planning Appeal Tribunal, Temwood had offered an undertaking, by way of deed, to cede the foreshore reserve if the condition was found after all appeals to be valid. That was rejected by the respondent. He deposes that the effect of the condition has been to "prevent" the applicant from subdividing the land. As a result, it appears that the offer in respect of the super lot has now been withdrawn. It also appears from the affidavits that the applicant has a limited trading stock of subdivided residential lots to sell and that the subdivisions other than the super lot were intended to create a mix of lower quality lots which could be sold to first home buyers eligible for Commonwealth government subsidy, and higher quality lots. The current conditions of the Commonwealth government subsidy are such that it will not be available after the end of 2001. The applicant is in a difficult financial position as a result of its lack of residential lots to sell.

6 It appears that the applicant has made a number of proposals to the respondent, either along the lines that it would execute a deed offering to cede the foreshore land if its appeals were unsuccessful, or alternatively transferring the land "under protest" by way of a deed containing the respondent's undertaking to retransfer the land to the applicant should the applicant's appeal to the Full Court or any subsequent appeal to the High Court be successful. The respondent did not agree to those proposals. By letter dated 20 July 2001, solicitors for the applicant advised the respondent that:

"... our client will now cede the foreshore land to your client free of charge under protest. Our client is in the process of finalising the diagrams so that the foreshore reserve can be transferred to your client. Our client will apply for injunctive relief in the Full Court to require the State of Western Australia to transfer the foreshore land back to our client should our client be successful in the appeal."

7 There is no evidence of a direct response to that letter from the respondent but a letter of the respondent dated 20 August 2001 to the applicant's agents, and referring to a telephone request that the respondent endorse the plan of subdivision, contained this passage:

"As you are aware, Condition 1 of the Conditions of Approval which the Commission imposed upon the respective sub-division applications is the subject of an appeal to the Full Court of the Supreme Court of Western Australia. The Commission will endorse the relevant diagrams/plans once the appeal process has been finalised, and there is a final decision in relation to the relevant conditions of approval."

8 This prompted a letter of 22 August 2001 from the solicitors for the applicant to the solicitors for the respondent contending that the respondent's intention was to "place illegitimate economic pressure" on the applicant to prevent it from pursuing its appeal. It was asserted in that letter that there was no possible legitimate reason for the respondent to refuse to endorse the diagram. The final letter in that chain of correspondence was the respondent's solicitors' response dated 23 August. That letter asserted that the respondent was not seeking to pressure the appellant to adopt any particular course of action. It explained the respondent's views as follows:

"The respondent has canvassed various options in order to attempt to resolve this matter. However, upon full consideration of the issues, it considers that, whilst a condition or conditions of sub-division approval are the subject of an appeal, there is no finality or certainty with respect to the applicable condition(s). Thus, the respondent considers that the appeal process must be finalised, and there must be a final decision in relation to the conditions which are the subject of an appeal, before there can be compliance with the relevant conditions of approval for the purposes of s 20AA(2) of the Town Planning and Development Act 1928 ('The Act').

If the conditions of approval are upheld by the appellate court then the respondent will endorse the diagrams or plans of survey, upon compliance with relevant conditions of approval and once the requirement of s 20AA(2) of the Act have been satisfied.

The respondent will co-operate, subject to counsel's availability, in order to facilitate a prompt and expeditious resolution of the appeal."

9 There are a number of difficult procedural and jurisdictional issues which potentially arise in respect of this application. When the matter was first before me, an objection was taken to the form of the chamber summons, on the basis that the applicant should have proceeded by way of notice of a motion pursuant to O 55 and it was objected that the summons did not in any event specify the nature of the contempt alleged to have been committed. The applicant's amendments, for which I gave leave, particularised the nature of the alleged contempt. However, there are a number of outstanding issues.

10 First, and most importantly, the applicant asserts that it is permissible for it to seek, not an order of committal pursuant to O 55, but simply the "relief" of a mandatory injunction in the first instance. It seems to me that the applicant faces real difficulties in this respect. Criminal contempt is not primarily a matter of private concern, but is rather an affront to the administration of justice which the Court is concerned to punish, whether that punishment be of its own motion or at the instance of a person with sufficient interest in the proceedings. This proposition emerges from a long line of authority; perhaps most clearly in recent times it is seen from Re Colina [1999] HCA 57 at par 2-5(per Gleeson CJ and Gummow J), 72 (Kirby J) and 109-112 (Hayne J). While there is authority for the proposition that, where a contempt is threatened or has been committed, the court may take the "more lenient" course of granting an injunction in preference to an order for committal or sequestration (Coats v Chadwick [1894] 1 Ch 347), it does not in my view necessarily flow from that proposition that it is open to the applicant to proceed in a case of contempt by seeking mandatory injunction in the first instance rather than an order for committal or sequestration.

11 The respondent on the other hand contends that an application in respect of an alleged contempt may only be brought pursuant to the procedure provided by O 55, from which it flows that, since the contempt was not one in the face of the court or in the hearing of the court, the application can be heard only by a Full Court. This proposition I think runs together a number of steps. It may well be the case that O 55 r 2(2) which provides that: "Subject to par (3) an order of committal may be made only by the Full Court" has the effect that a single Judge may make an order of committal only in the circumstances set out in r 2 par 3(3). However other portions of O 55 are in permissive terms; for example r 3 provides that the presiding Judge "may" by oral order direct the arrest of the contemnor and r 7 provides that the court "may" punish contempt in the manner therein described. As a matter of first impression it appears to me that the better view is that O 55 does not exhaustively prescribe the manner in which the court's contempt jurisdiction may be exercised and does not purport to exhaustively define the court's power in cases of contempt: Marriner v Smorgon [1989] VicRp 47; [1989] VR 485, Resolute Ltd v Warnes [2001] WASCA 4.

12 It is also to be noted that the unusual procedure of summary trial for contempt carries with it a particular risk of unfairness to the alleged contemnor, and many suggestions for reform have been made with a view to reducing that perceived risk; R v Lovelady [1982] WAR 65 at 67-68 per Burt CJ. In this context, it may be seen that the intention of O 55 is that a single Judge will exercise power in relation to alleged contempts in relatively limited circumstances, giving the alleged contemnor the protection of a hearing by the Full Court in other cases. Even if O 55 is not exhaustive, then, it would appear to me that only in the most exceptional case should this Court, particularly if constituted by a single Judge, take or permit any action against an alleged contemnor which is not contemplated by O 55.

13 It is only necessary to set out the competing contentions briefly, however, since I have formed the clear view that, even if there were jurisdiction to make such an order, no factual basis for making it has been established. Before turning to the facts again, it is convenient to set out the principles to be applied generally to a contempt of the nature alleged. Both counsel for the applicant and for the respondent were in agreement that the principles relevant for present purposes were set out in the reasons for decision of Ipp J, with whom Kennedy and Miller JJ agreed, in Resolute Ltd v Warnes [2000] WASCA 359 at par 13. Omitting citations, those principles were:-

"(a) The charge must be established beyond reasonable doubt.

(b) The claimant must prove, according to the criminal standard, that the published material has, as a matter of practical reality, a real (or clear) and definite tendency to interfere with the course of justice in a particular case. [To make it applicable to this case, one would substitute for the words 'the published material', 'the act or omission', being the act or omission of the alleged contemnor].

(c) Because of its exceptional nature, this summary jurisdiction has always been regarded as one which is to be exercised with great caution.

(d) Intention to interfere with the administration of justice is not necessary to constitute a contempt. Where, however, intent to interfere has been proved, this has usually been sufficient to sustain a prosecution.

(e) The gravamen of the category of criminal contempt in which improper pressure is placed on a party to court proceedings through public dissemination of material [or some other act or omission] is the tendency to deter the litigant, improperly, from obtaining curial vindication of its rights. Successful interference with a party's conduct of proceedings is not necessary for proof of liability for contempt by improper pressure.

(f) It is an open question as to whether the tendency is to be measured against the capacity of the particular litigant involved to withstand pressure, or whether the court should have in contemplation some hypothetical litigant of "ordinary" fortitude.

(g) In punishing certain types of interference with litigants, the law distinguishes between proper and improper pressure."

14 Perhaps the first thing to observe is that the "pressure" felt by the applicant arises from a complex combination of circumstances, many of which appear to predate the applicant's appeal and to be entirely outside the control of the respondent. There is no suggestion that the respondent bears any responsibility for the fact that the applicant has but a limited number of lots left to sell, or that it has significant debts, nor is it suggested that the respondent has placed any pressure on the intending purchaser of the super lot to withdraw its offer, or anything of that kind. It is however submitted by the applicant, and I accept for present purposes, that the respondent is aware (because the applicant has told it) that, by reason of the applicant's particular circumstances, delay in subdividing the lots, the subject of this appeal have caused it to come under considerable financial pressure.

15 It should also be noted that it appears that the respondent has been consistent in its conduct in relation to the condition of ceding of the foreshore, in the sense that it has always rejected any suggestions made by the applicant which would have had the effect of permitting subdivision while the validity of such a condition remained in doubt. It is not suggested that any of the respondent's rejections of earlier proposals was, or was intended, to place improper pressure on the applicant in relation to its appeal to the Town Planning Appeal Tribunal or to a single Judge of this Court.

16 The difference between the earlier proposals made to the respondent and the current position is that the earlier proposals would have in effect guaranteed that, if its appeals were successful, the applicant would be able to regain title to the foreshore. Now, the applicant offers to cede the foreshore to the respondent while placing the respondent on notice that it hopes to persuade the Full Court to make orders, if its appeal is successful, which would see it regain title to the foreshore. It submits that the only reason which the respondent conceivably has for refusing to accept the transfer of the foreshore and to endorse the relevant plan/diagram of subdivision is that the respondent intends to place improper pressure on it to abandon its appeal. As I understand it, the express reference to the appeal in the respondent's letter of 20 August 2001, is said to add weight to this submission.

17 For the respondent, it is contended that there cannot be an intention to interfere with the administration of justice, nor can there be improper pressure, where the respondent has acted upon legal advice and where it is exercising power which it possesses to refuse to endorse a diagram or plan. I will come back to the second matter in a moment. So far as the first contention is concerned, I do not accept it. First, the conclusion does not necessarily follow, from the correspondence which has been placed before me, that the respondent's decision was made only as a result of legal advice. Even if it were, while taking of advice would plainly be relevant to penalty, it appears to me that it is conceivable that erroneous legal advice may lead a party to commit a contempt.

18 However, it was also submitted to me on behalf of the respondent that, as a matter of law, there were two reasons why it would be inappropriate for the respondent to endorse the diagram or plan until the appeal had been heard and determined. The first was, that in the generality of cases it would be in the interests of the person to whom approval of the plan for subdivision had been given that the Commission should refrain from endorsing its approval on the diagram or plan until any appeals had been finally dealt with. Section 20AA(3) of the Act provides in effect that approval of a plan of subdivision ceases to have effect if a diagram or plan of survey of "the subdivision" has not been submitted to the Commission within three years of the date of the Commission's approval. It is submitted that the plan for the actual subdivision which is to take place cannot be submitted until all conditions are "finalised", so that the person proposing to subdivide the land runs a greater risk of being out of time if approval is endorsed prior to the conclusion of the appeal. It is clear that this applicant is anxious to waive any protection which the respondent's position would give it, but it does not necessarily follow from that that it is improper of the respondent to take that view. In the absence of any suggestion that the respondent is inconsistent in its interpretation of s 20AA(3) or that the view which is submitted on its behalf is so erroneous that it could not be honestly held, this consideration might be sufficient to justify a view that the applicant could not establish an intent to interfere with the administration of justice. I do not think it is necessary finally to determine this issue, having regard to the other consideration advanced by the respondent.

19 The other reason advanced by the respondent as justifying its failure to comply with the applicant's request, is one which relates not to the applicant itself but to potential purchasers. It is argued that if the subdivision now proceeds on the basis that the condition is valid, and the land is owned by the State, there may well be purchasers of subdivided land who purchase that land on the basis that the foreshore belongs to the State, and in ignorance of the appeal. An appeal may or may not take some time to be heard and determined, and in the meantime it would be unfair to potential purchasers if the Commission were to act in a way which could lead them to assume that the status of the foreshore was not in doubt. It may or may not be of significance to potential purchasers that the foreshore is owned by the Crown (and therefore likely to remain a reserve) rather than by the applicant, (which wishes to develop it or part of it).

20 It is of course generally the case that proximity to public open space is a factor which may affect a purchaser's decision and a purchaser's assessment of the value of land. It appears that lots in one of the proposed subdivisions abut the proposed foreshore reserve, while others are further away, so that the significance of the status of the foreshore may be of varying importance in relation to different portions of land. It is also the case, as the applicant points out, that the intending purchaser of the super lot did not appear to be concerned with the status of the foreshore and that there are no conditions in the contract for the sale of that lot directed to the foreshore. In the circumstances, all that one can say, as the respondent accepts, is that the status of the foreshore may be a consideration of some importance to some purchasers.

21 In response to that submission, the applicant submits that s 20AA(2) of the Act requires the Commission to endorse its approval on the diagram or plan of survey, and that any refusal to do so is therefore improper. There are two observations to be made about this submission. The first is that it does not meet the proposition that it cannot be established beyond reasonable doubt that the respondent intended to interfere with the administration of justice, because there is a plausible explanation, based upon the respondent's interpretation of the law, for its failure to accede to the applicant's wishes, which would involve no such intention. The respondent's view of the law may be right or wrong, but unless it is so plainly unarguable that it cannot be honestly held it is relevant to the question of intention.

22 Further, there is in my view a question as to the proper interpretation of s 20AA(2) in the context of the Act as a whole. That subsection reads relevantly:

(a) the diagram or plan of survey is in accordance with the plan of sub-division approved under s 20(1)(a);

and

(b) if that approval given was subject to conditions, the conditions have been complied with,

the Commission shall endorse its approval on the diagram or plan of survey."

23 Section 20(1)(a) permits the Commission to give its approval of a proposed subdivision "subject to conditions which shall be carried out before the approval becomes effective". There is plainly a statutory intention that no subdivision will take place when it is uncertain whether or not conditions have been complied with. This may be because of the difficulty of continuing supervision of a developer, or for the protection of purchasers so as to provide them with certainty, or for some combination of those and/or other reasons. In that context, one can see that there is an argument that conditions may not relevantly have been "complied with" where, although there has been compliance, the applicant has indicated that it proposes to do everything in its power to reverse the effect of that compliance. Further, it is to be noted that while the language of s 20AA(2) is mandatory, it does not require the Commission to endorse its approval either "forthwith" or within any specified time. There may well be a necessary implication that it should do so within a reasonable time, but that would give rise to an issue as to what was a reasonable time in the circumstances of a case such as the present.

24 I have considered the question of intention to interfere with the administration of justice, and whether that can be established beyond reasonable doubt, in some detail, because it appears to me that the applicant placed greatest reliance on this means of establishing commission of a contempt. The argument was that as a practical matter the respondent's decision placed it under pressure, and that the respondent did so with the relevant intention. The question of whether, independently of any intention, the pressure nevertheless was improper was not argued in any detail before me. However I would observe in that context, for sake of completeness, that if the Commission's refusal is intended to, and can have the effect of, protecting potential purchasers of land, it is difficult to see how any pressure which is, as a by-product, placed upon the applicant, by reason of its particular circumstances, can be seen as improper.

25 To summarise, it appears that from some time prior to the commencement of the appeal to the Town Planning Appeal Tribunal until the present, the respondent has consistently taken the position that there should be no subdivision until the question of the condition had been finally determined and, if the condition was valid, it had been complied with. The view taken by the respondent could be seen to be in the interests of potential purchasers of land. The position taken by the respondent is at least arguably consistent with a statutory intention that conditions be "finalised" before subdivision can proceed. In those circumstances, the applicant has, in my view, not demonstrated that the respondent is guilty of contempt of court. If I had jurisdiction, I would not make the orders sought. However, there is a real question as to whether there is jurisdiction in a single Judge to find a party in contempt in these circumstances and make the orders sought by the applicant.

26 No argument was directed to the question of expedition of the appeal. I therefore make no order for expedition. It would appear that the parties agree that expedition is desirable, and they can take appropriate steps in that regard if they wish to do so.