Yallingup Residents Association (Inc) v State Administrative Tribunal & Ors [2006] WASC 52

Yallingup Residents Association (Inc) v State Administrative Tribunal & Ors [2006] WASC 52 - WASC 2006 case summary — Zoe

[43]

26 It is apparent from Mr Price's affidavit that some members of the Association became aware that the Shire was to consider on 25 January 2006, a further development application lodged by Silverland. The affidavit is silent as to the source of the information or when the deponent or others first became aware that the development application had been lodged and was to be heard on that date. In any event, representatives of the Association attended the Shire's offices when Council was considering the development application and made oral submissions. Councillors were reminded of the fact that the decision on the primary application had been reserved and that, in the event the decision went in favour of the Association, it was possible that the site might have to be restored to its original condition. The Shire was requested to wait for the Court's decision to be handed down before approving any further application. The possibility of seeking an injunction to prevent any works being undertaken on the site was also drawn to the Councillor's attention. As to the merits of the application, the density of the development was addressed and the Council was told that the density under the existing short term stay residential zoning allowed for 360 metres per lot whereas the density of the proposed development was 260 metres per lot in the event that permission was given to build on the sand dune. It was also submitted that, irrespective of the zoning density, there should be no development of the dune. Another proposition that was put to the Councillors was that the amendment was in direct conflict with State planning policy of enhancing tourism because of the relocation of the commercial/tourism aspect of the development away from public access. The adverse impact on the community of the additional traffic flow and parking problems was also raised. Finally, it was put to the Councillors that the application was for an ill-conceived high-density development which would despoil an iconic piece of coastline.

[51]

32 It may well be that the difference in approach is explained by the fact that Branch v Lawrence was a case of an appeal from the decision of the Court of Appeal pending an application for special leave, whereas Stampalia involved an order nisi for a writ of certiorari, as in this case. However, with respect to Owen J, I agree with Hasluck J that the test to be applied is as stated by Pullin J in Branch v Lawrence. I note that in Hamersley Iron Pty Ltd v Lovell, the Court determined that the approach of the Court in determining whether to grant a stay of execution pending an application for special leave to the High Court should be the same as the approach taken by the High Court to the same application: per Ipp J (at 85); per Anderson J (at 91). The reason given by Ipp J was that the rules which applied to the High Court were counterparts of the Rules of the Supreme Court. Ipp J considered that the relevant considerations do not differ depending on whether the application for a stay is made to the High Court or the Supreme Court: (at 85). Anderson J took a slightly different approach. His Honour considered that there should be a general conformity between the approach taken by the Supreme Court in the exercise of its jurisdiction to stay pending applications for special leave to appeal and the approach that would be taken by the High Court to the same application: (at 91). An application for a writ of certiorari may be returnable for a single Judge or the Full Court and, as with appeals from the Full Court to the High Court, often involve situations where the appeal may well be futile if a stay is not granted or require preservation of the subject matter if the appeal is not to be rendered nugatory. In my view, I can see no reason why the conformity seen as desirable by Anderson J in Hamersley Iron Pty Ltd v Lovell is not also desirable in applications for a stay of proceedings pending the grant of a prerogative writ. In Edelsten v Ward (No 2) (1988) 63 ALJR 346, Brennan J observed that it is important to emphasis that the power to grant a stay is an exceptional jurisdiction lest the impression be created that, in the conduct of litigation, such orders are available to keep matters in status quo until litigation is finally resolved. I consider that this proposition applies equally to any type of appeal, including an "appeal" by way of an application for a writ of certiorari. For these reasons, I prefer the test outlined by Pullin J in Branch v Lawrence to that of Owen J in Stampalia.

[53]

34 The Association submits that, having produced evidence of the proposed development to the extent available to it, that evidence should be weighed according to the proof that was within the power of the Association to have produced and was in the power of Silverland to have contradicted. It is said that neither the Shire nor Silverland have contradicted the Association's evidence. In support of this proposition, counsel relied on the decision of Lord Mansfield in Blatch v Archer [1774] EngR 2; (1774) 98 ER 969. In Blatch v Archer, on the trial of a civil action of debt against a sheriff for the escape of a person in custody, an issue arose as to whether the arrest was legal. The warrant justifying the arrest was in the hands of the sheriff and therefore it was not in the power of the plaintiff in the action to produce it. Lord Mansfield held (at 970) that it was certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted. That decision was followed in Apollo Shower Screens Pty Ltd & Anor v Building and Construction Industry Long Service Payments Corporation [1985] 1 NSWLR 561 where the Court was called on to determine whether the plaintiff was required to lodge returns or pay into the long service leave fund administered by the defendant which had the legislative responsibility for the fund. The question which arose was whether the work carried out by the plaintiff's employees was work of the kind usually performed by a carpenter and, therefore, building and construction work for the purposes of the Act. The plaintiff's case was that it did not meet that definition. Hunt J considered that the defendant had the greater means to produce evidence which contradicts the negative proposition for which the plaintiff contended. Provided the plaintiff established sufficient evidence from which the negative proposition may be inferred, the defendant carried an evidential burden to advance in evidence any particular matters with which the plaintiff would have to deal in the discharge of their overall burden of proof: (at 565). However, Hunt J emphasised that the plaintiff was required to produce more than only comparatively slight, or a mere scintilla of evidence to discharge its onus. He concluded by making the following observation (at 565):

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Yallingup Residents Association (Inc) v State Administrative Tribunal & Ors [2006] WASC 52 (22 March 2006)

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