Westfield Ltd v Commissioner for Land Planning, Efkar Pty Ltd, Pontias Pty Ltd & Peddle Thorp & Walker Pty Ltd [2003] ACTSC 80 (9 October 2003)

Last Updated: 14 October 2003

WESTFIELD LIMITED v COMMISSIONER FOR LAND PLANNING and EFKAR PTY LIMITED and PONTIAS PTY LIMITED and PEDDLE THORP & WALKER PTY LIMITED

[2003] ACTSC 80 (9 October 2003)

APPEAL - interlocutory appeal from Administrative Appeals Tribunal - stay of proceedings - order affecting operation or implementation of tribunal decision

STAY - appeal by non-party from Administrative Appeals Tribunal against refusal of joinder application - where appeal would be rendered nugatory - appropriate order

Administrative Appeals Tribunal Act 1989, s 28

Land (Planning and Environment) Act 1991

Efkar Pty Limited v ACT Planning and Land Authority AT 03/35

Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning (1998) 147 FLR 291

Canberra Tradesmen's Union Club v Commissioner for Land and Planning [1999] FCA 262

Jewel Food Stores Pty Limited v Minister for Planning (1994) 122 FLR 269

Manuka Business Association Inc v Australian Capital Territory Executive (1998) 146 FLR 464

Australian Conservation Foundation v The Commonwealth (1980) 156 CLR 493

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Allan v Transurban City Link Limited [2001] HCA 58; (2001) 208 CLR 167

No CA 54 of 2003

Coram: Master Harper

Supreme Court of the ACT

Date: 9 October 2003

IN THE SUPREME COURT OF THE )

) No CA 54 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: WESTFIELD LIMITED

Appellant

AND: COMMISSIONER FOR LAND PLANNING

1^st Respondent

AND EFKAR PTY LIMITED and PONTIAS PTY LIMITED

2^nd Respondent

AND PEDDLE THORP AND WALKER PTY LIMITED

3^rd Respondent

ORDER

Coram: Master Harper

Date: 9 October 2003

Place: Canberra

THE COURT ORDERS THAT:

1. Proceedings in the application for review in the Administrative Appeals Tribunal by the second respondents (AT 03/35) be stayed until the appellant's appeal to this Court from the decision of the Administrative Appeals Tribunal of 8 August 2003 has been heard and determined.

2. The parties have liberty to apply on two days' notice in relation to the costs of the application.1. This is an interlocutory application in an appeal from an interlocutory decision by the Administrative Appeals Tribunal. The proceedings have their genesis in an application by the second respondents, Efkar Pty Limited and Pontians Pty Limited, for approval of a development application in respect of a block of land at Belconnen, presently the site of the Belconnen fruit and vegetable markets. To understand the issues which arise on the present application, it is necessary to set out a little of the factual background.

2. The development application sought approval for the erection of a single-storey building with a gross floor area of 13,041 square metres, in which it is proposed that an Aldi supermarket will be conducted. The appellant, Westfield Limited, lodged an objection to the development application. The first respondent, the Commissioner, decided not to approve the development application, which was formally refused on 24 February 2003.

3. The second respondents, to whom I shall refer as the developers, applied to the Administrative Appeals Tribunal for review of the Commissioner's decision. The appellant was formally notified of the application for review, and applied to the Tribunal to be joined as a party. Provision is made for joinder of parties in s 28 of the Administrative Appeals Tribunal Act 1989 (the AAT Act). The relevant provisions are:

28(2) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply in writing to the tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

(3) Where -

(a) a person applies for the review of a decision referred to in subsection 275(1) or (2) of the Land (Planning and Environment) Act 1991; or

(b) a person applies for the review of a decision referred to in s 276 of that Act;

a person to whom notice of the application has been given under s 278 or 279 of that Act may apply in writing to the Tribunal to be made a party to the proceedings and, on such an application being made, the Tribunal shall, by order, make the person a party to the proceedings.

4. Subsection 28(2) of the AAT Act is a general provision, applicable to the full range of the Tribunal's jurisdiction. Subsection 28(3) is limited to the Tribunal's planning jurisdiction. The decision under review was one referred to in subsection 275(1) of the Land (Planning and Environment) Act 1991 (the LPE Act), and the appellant had been given notice purporting to be pursuant to s 278 of the Act. However, this may not be conclusive as to the appellant's right to joinder under subsection 28(3) of the AAT Act. Notice under s 278 of the LPE Act is required to be given to persons who objected to the original application under s 237 of that Act. Section 237 provides that "any person who may be affected by the approval of an application" may object to the grant of the approval.

5. The appellant's application to be joined as a party was opposed by the developers, and was on 8 August 2003 refused by the learned President of the Tribunal: Efkar Pty Limited v ACT Planning and Land Authority AT 03/35. The President said at paragraph 21:

In order to meet the requirements of s 28(3) of the AAT Act so as to be entitled to be joined as a party it is necessary for Westfield to be a person who objected under s 237 of the Land Act. This requires more than the lodgement by a person of an objection to the development application. To be an objector under s 237 requires that the relevant person be a person who may be affected by approval by (sic, semble of) the development application (see Canberra Tradesman's Union Club Inc v Commissioner for Land and Planning [1998] ACT AAT 222 at paragraph 8).

6. An appeal from the Tribunal to this Court from the decision cited by the President was dismissed by Crispin J: Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning (1998) 147 FLR 291. His Honour's decision was upheld on appeal: Canberra Tradesmen's Union Club v Commissioner for Land and Planning [1999] FCA 262. I accept that the mere fact that a person has made an objection purportedly under s 237, and that the decision maker has given written notification to the person purportedly under s 278, does not bring that person within subsection 28(3) of the AAT Act, though I acknowledge that the contrary interpretation is arguable.

7. An appeal lies to this Court from the Tribunal by virtue of s 46 of the AAT Act. Relevantly, that section provides:

46(2) Where a person... has applied to be made a party to a proceeding for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision, the person may appeal to the Supreme Court from the decision of the Tribunal.

8. The institution of such an appeal does not affect the operation of the Tribunal's decision: subsection 47(1). This Court has a discretion to ameliorate that position, conferred by subsection 47(2), which is in the following terms:

47(2) Where an appeal is instituted in the Supreme Court from a decision of the Tribunal, the Court or a judge of the Court sitting in chambers may make such order staying or otherwise affecting the operation or implementation of either or both of the following:

(a) the decision of the tribunal or a part of that decision;

(b) the decision to which the proceeding before the tribunal related or a part of that decision;

as the Court or judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

9. The jurisdiction of the Court to entertain such an application may be exercised by the Master: Order 61A rule 1(u).

10. The appellant's appeal to this Court was instituted by notice of appeal filed on 4 September 2003. The Registrar has fixed 21 October for the settlement of the appeal papers, and in the absence of an order for expedited hearing, the appeal itself is unlikely to be heard until late November or early December. The application by the developers for review of the Commissioner's decision in the Tribunal is listed for hearing on 24 November 2003. The developers seek to proceed with that hearing and could be expected to oppose an application by the appellant to the Tribunal for the hearing date to be vacated pending the outcome of the appeal to this Court. Indeed, the Tribunal might take the view that the appellant has no standing to make such an application.

11. In the normal course, an appeal by a party from a decision of the Tribunal to the Court is restricted to a question of law: subsection 46(1), AAT Act. Such a restriction does not apply in terms to an appeal on a joinder application: subsection 46(2), set out above. Counsel for the parties have been unable to find any authority of this Court as to whether such an appeal is by way of rehearing or is an appeal in the strict sense, and I do not need to decide that issue for present purposes.

12. The notice of motion before me seeks an order that the proceedings in the Tribunal be stayed pending the determination of the appeal. Section 47 of the AAT Act does not specifically empower this Court to make an order in those terms. The power is to make an order staying or otherwise affecting the operation or implementation of the Tribunal's decision. It seems to me that the purpose of subsection 47(2) is to secure the effectiveness of the hearing and determination of the appeal, and that it should be interpreted accordingly. So construed, the subsection empowers this Court to make an order affecting the operation or implementation of the Tribunal's decision which would secure that effectiveness.

13. The principles governing consideration of an application for such an order have been helpfully summarised in written submissions on behalf of the appellant as follows:

* the appellant carries the onus of demonstrating that there is a proper basis for a stay which is fair to all parties (Alexander v Cambridge Credit Corporation Limited (1985) 2NSWLR 685 at 694);

* the Court has a discretion whether or not to grant a stay and, if so, on what, if any, conditions;

* the appellant must demonstrate that there are at least reasonably arguable grounds of appeal (Cambridge Credit, supra, at 695);

* it is not necessary to demonstrate that the case for a stay is `special' or `exceptional' (Cambridge Credit, supra, at 693-694). The test is not as stringent as where a stay is sought pending the hearing and determination of an application for special leave to appeal to the High Court, for reasons explained by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at 463-464;

* assuming that there is a reasonably arguable case on the appeal, a stay would normally be granted to avoid an appeal being rendered nugatory or ineffective (Cambridge Credit, supra, at 695).

14. It seems to me that the effectiveness of the hearing and determination of the appeal would be best secured by postponing the hearing of the review application in the Tribunal until the appeal has been determined, and for a sufficient time thereafter to enable the appellant if joined as a party, to prepare for hearing. No evidence was put before me which might lead the Court to conclude that the developers will suffer any hardship, or indeed any financial loss at all, if the Tribunal hearing is delayed. The appellant has not offered to indemnify the developers in respect of any loss if the appeal to the Court fails, but as no such potential loss is asserted, such an offer is hardly to be expected.

15. The major issue for consideration is thus whether or not the appellant has reasonably arguable grounds of appeal. The grounds of appeal are:

1. The Tribunal erred in concluding that there was not a sufficient basis upon which to join Westfield Limited as a party under either subsections 28(2) or 28(3) of the Australian Capital Territory Administrative Appeal Tribunal Act 1989.

2. The Tribunal failed to have regard, or proper regard, to a relevant consideration, namely the interest of Westfield and/or the owners of Belconnen Mall in upholding and enforcing the economic protection afforded to the core retail and business area of Belconnen town centre by relevant provisions in both the Territory Plan and the Crown lease.

3. The Tribunal erred in law by applying the wrong legal test in refusing Westfield Limited's application to be joined as a party to the proceedings under subsection 28(3) of the Australian Capital Territory Administrative Appeal Tribunal Act 1989 in requiring Westfield to demonstrate not only that its interests (and/or the owners of Belconnen Mall) may be affected by the approval of the development application, but also to demonstrate the detailed manner and extent of that affect.

4. In finding that Westfield had failed to establish that approval of the development application might adversely affect its interests or those of the owners of Belconnen Mall, or that either of those interests were affected by the decision under review, the Tribunal failed to have regard, or proper regard, to the following important relevant evidence:

(a) the contents of Westfield's objection letter dated 28 January 2003 and, in particular:

(i) Westfield's objection that approval of the application would involve `approval of intensive retailing outside the core of the Belconnen town centre' (contrary to the objective in clause 4.3 of part B2B of the Territory Plan);

(ii) Westfield's related objection that the proposal was for the development of a shop selling food other than a fresh produce market and that the gross floor area for such a land use was in excess of 200 square metres, contrary to relevant provisions of both the Crown lease and Territory Plan;

(b) Mr Bradhurst's written and oral evidence concerning Westfield's role as the provider of development services to the owners of Belconnen Mall and the fact that that evidence was not challenged;

(c) Mr Bradhurst's oral evidence to the effect that the owners of Belconnen Mall relied on Westfield to protect their asset from threats; and

(d) The fact that the Commissioner for Land and Planning's stated reason for declining to approve the development application was that the proposed development was inconsistent with the objectives and land use restrictions applying to Precinct (c) of the town centre land use policies in the Territory Plan and was also inconsistent with clauses 3(f) and 3(h) of the Crown lease, thereby supporting the grounds of Westfield's objection.

16. Counsel for the appellant submitted that it was at least reasonably arguable that there was a sufficient basis to join the appellant as a party in circumstances where the appellant had lodged a written objection to the development proposal under s 237 of the LPE Act as a person who may be affected by the proposal, the primary basis of the objection being the appellant's stated concern that the proposed development was contrary to the objectives and controls set out in the Territory Plan and contrary to the provisions of the Crown lease. It was submitted that both the Territory Plan and the Crown lease contained significant provisions whose nature and effect was to provide economic protection to the core retail and business area of Belconnen town centre: this distinguished the present case on the facts from those which had been considered in such cases as Jewel Food Stores Pty Limited v Minister for Planning (1994) 122 FLR 269, Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning (supra), Manuka Business Association Inc v Australian Capital Territory Executive (1998) 146 FLR 464 and Australian Conservation Foundation v The Commonwealth (1980) 156 CLR 493. In those cases it had been held that adverse economic impact alone was not a sufficient basis for an objection.

17. The appellant had submitted in its written objection that the development application if approved would undermine the existing framework for retail activity in Belconnen, by placing intensive retailing outside the core retail precinct, thus undermining the orderly planning of Belconnen, which would damage public and investor confidence in the planning system.

18. Counsel for the appellant also drew attention to the fact that the Commissioner did not oppose the appellant's application for joinder in the Tribunal and accepted that the appellant's role as provider of development services to the owners of Belconnen Mall could be regarded as a sufficient interest for the purposes of joinder. I would not have seen this limited support, coming form a party seeking the same outcome in the Tribunal, as of great weight.

19. It was further submitted that there was unchallenged evidence before the Tribunal of the nature of the interests of the appellants and of the owners of Belconnen Mall in opposing the development proposal, including evidence of the provision by the appellant to the owners of development services on a professional basis. There was also evidence of support by the owners of Belconnen Mall for the objection and joinder application. The services provided by the appellant to the owners included `defending against... or opposing other developments that seek to impact on the performance of the centre'.

20. As to ground two, it was submitted that that tribunal failed to have regard, or proper regard, to an important relevant consideration, namely the interests of the appellant and the owners of Belconnen Mall in upholding and enforcing the economic protection afforded to the core retail and business area by relevant provisions in both the Territory Plan and the Crown lease. The President proceeded on the basis that a `mere interest in upholding planning policies does little to set Westfield's interest apart from that which it has as an ordinary member of the public' and that such an interest was insufficient to meet the requirements of s 237 of the LPE Act. This approach was said to be in error in that it failed to take into account the particular interests of the appellant and the owners of Belconnen Mall in ensuring that the relevant parts of the Territory Plan and Crown lease which provided exclusive economic protection to core retail business in Precinct (a) were upheld and enforced. The evidence demonstrated that the appellant and the owners of Belconnen Mall had a particular self-interest in those matters which plainly differentiated them from ordinary members of the public concerned to uphold planning laws. The error was emphasised by the inconsistent finding that `there would be some adverse economic effect likely to result from approval of the development application on the persons who provide similar goods and services in the Belconnen Mall'.

21. Counsel for the plaintiff submitted that ground three raised the strongly arguable question of whether the tribunal had applied the correct legal test in refusing the joinder application. Applying the wrong test, it was submitted, involves an error of law: see, for example Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at para 29 per Mason CJ, Deane and McHugh JJ. The relevant issue was not one of whether the retail business operating in Belconnen Mall could adjust to and meet competition from a large retail shop operating in competition with them from Precinct (c). The stated policy of the Territory Plan was to concentrate core retail businesses in Precinct (a) and not to permit their operation in Precinct (c) at all. For the President to have taken the view that the appellant had an obligation to satisfy the Tribunal of the likely actual adverse economic impact on Belconnen Mall involved an error as to the correct legal test to be applied.

22. As to ground four, it was submitted that it was clear from the findings of the tribunal that inadequate regard had been paid by the learned President to the specific areas of evidence set out in the ground.

23. To understand these arguments, and the contrary submissions put on behalf of the developers, it is necessary for me to explain in a little further detail the factual background, which was generally not in contention. Belconnen Mall is owned by Commonwealth Funds Management Limited as trustee of the Commonwealth Property Fund and Westfield Management Limited as responsible entity of the Westfield Trust. The Mall is managed on behalf of the owners by Westfield Shopping Centre Management Co (ACT) Pty Limited. The appellant, Westfield Limited, provides a variety of financial, corporate, development and leasing services to the owners. These include the protection and enhancement of the value of Belconnen Mall as a shopping centre and of the return to investors from it. The owners rely on the appellant to seek out opportunities to improve their assets and to identify threats or possible causes of erosion in the value of their assets. The owners remunerate the appellant by payment of fees calculated on a commercial basis. The three Westfield companies are part of the Westfield Holdings Group, a group of a large number of companies which are involved in the ownership and operation, through various structures, of shopping centres throughout Australia and in other parts of the world. The ultimate holding company is Westfield Holdings Limited, an Australian company with its base in Sydney.

24. The Territory Plan operates effectively as delegated legislation under the LPE Act, s 8 of which provides that the Territory, the Executive, a Minister or a Territory authority shall not do any act, or approve the doing of any act, that is inconsistent with the Plan. Part B2B of the Plan deals with commercial land use policies in town centres. The Belconnen town centre, similarly to other town centres in the Canberra city area, is divided into areas `zoned' as retail core (a), business area (b), mixed services (c) and carparking (d). The only area in the Belconnen town centre zoned retail core (a) is section 52 upon which Belconnen Mall is located. Belconnen Mall is a large retail shopping centre and occupies the whole, or virtually the whole, of section 52. Retail core (a) land may be used, inter alia, for shop purposes. The objectives of precinct (a) retail core land are stated in the Territory Plan to be as follows:

(a) to make provision for a range of retail and service outlets accessible to consumers;

(b) to make provision for an efficient distribution of retail functions;

(c) to promote evening and weekend activity;

(d) to encourage the provision of an attractive pedestrian environment; and

(e) to provide safe access to shops for pedestrians and for consumers by public and private transport.

25. Apart from some provision for carparking, most of the land adjoining section 52 to the north, east and south is zoned precinct (b) business area, and is generally occupied by government and other office buildings. The land to the west of block 52 is zoned precinct (c) mixed services area. Its objectives are stated to be as follows:

(a) to make provision for a range of conveniently located service and relatively low rent commercial activities;

(b) to accommodate retail-related uses requiring large floor areas; and

(c) to provide for a wider range of commercial development in the Mixed Services Precinct provided that this development does not undermine the function of the retail cores and business areas of the town centres and the viability of the commercial hierarchy.

26. The Territory Plan also sets out a number of controls for precinct (c) mixed services areas, including, as a land use restriction, the provision that the maximum gross floor area of a supermarket or shop selling food, other than produce markets, is 200m² per lease. According to a letter from Mr Jonathan Bradhurst, a development executive with the appellant company, which was in evidence, this was mirrored in the purpose clause in the Crown lease of the land the subject of the development application. It was also asserted in that letter, although there was no direct evidence of it, that Aldi is a dry grocery store that regularly stocks items ranging from packaged groceries and confectionery through to cleaning products, stationery, canned and bottled soft drink, as well as a small component of pre-packaged fruit and vegetables and dairy products: from Mr Bradhurst's personal experience, Aldi's range may also include from time to time the sale of televisions, DVD players and even golf clubs. I should add that the letter was annexed to an affidavit in such a manner that I take it to be evidence that it was sent as an objection to Planning and Land Management, but not as evidence that its contents were true. Mr Bradhurst swore an affidavit for the purpose of the AAT proceedings and gave oral evidence in those proceedings but did not depose to his knowledge of the range of stock carried by existing Aldi stores. The statements in the letter can therefore amount to no more than an assertion by the appellant, albeit not denied or challenged by the developers, and is not evidence of the truth of the assertion.

27. On the appeal, it can be anticipated that the appellant will argue that it is a `person whose interests are affected by the decision'. If the appellant satisfies the Court of this, it will follow that the appellant was entitled to apply to the Tribunal to be made a party, whereupon the Tribunal had a discretion whether or not to make the appellant a party: subsection 28(2), AAT Act. It will be open to the Court, in that event, to remit the application to the Tribunal to make a decision in the exercise of its discretion, or for the Court to substitute its own decision: subsection 46(5), AAT Act. I am of the provisional view that the appellant is not a person whose interests are affected by the decision, for the reason that the decision was to refuse approval to the development application. That decision, if it stands, cannot, as I see it, affect the interests of the appellant adversely, favourably or at all. It might be otherwise if the decision had been to approve the development application.

28. However, my provisional view on that issue is not determinative of the question before me. The appellant must demonstrate to my satisfaction only that there is a reasonable argument in favour of the proposition that the appellant is a `person whose interests are affected by the decision'. It is far more strongly arguable that the appellant's interests would be affected if the substantive application by the developers for tribunal review were to succeed. I can recognise the force in the argument that the statute should not be interpreted in such a way that it would give standing to a person whose interests are affected by an adverse initial decision but not to such a person for the purpose of upholding a favourable decision against challenge. On balance, I think I must find that it is reasonably arguable that a person in the later category is a person who may apply to the tribunal under subsection 28(2).

29. It was strongly submitted by counsel for the developers that the appellant is not in any event a `person whose interests are affected by the decision' on the facts. The appellant is not the owner of the Belconnen Mall or of any business whose viability might be threatened by competition with the Mall or its tenants. It was submitted that, on the evidence, the appellant is no more than a consultant offering its services at commercial rates to shopping centre owners and developers. As such it falls well outside the boundaries of the phrase quoted, notwithstanding that the expression has an ambulatory operation: cf. Allan v Transurban City Link Limited [2001] HCA 58; (2001) 208 CLR 167 at paras 16-17.

30. It seems to me reasonably arguable that the appellant's status as a company within the Westfield group, fellow members of which include the manager and one of the joint owners of the Belconnen Mall, places it in a different category from an entirely independent company operating as a consultant in a similar fashion.

31. I am also satisfied that it is at least reasonably arguable that the appellant's status, representing interests associated with the Belconnen Mall, takes it beyond that of a mere commercial competitor, having regard to the objectives set out in the Territory Plan in respect of the precincts in which the Mall and the land sought to be developed are located. In this regard I would place particular emphasis on the proviso in the objectives of Precinct (c) land not to undermine the function of the retail cores and business areas of the town centres and the viability of the commercial hierarchy.

32. It follows with greater force that the appellant can reasonably be argued to be a `person who may be affected by the approval of an application' within subsection 237(1) of the LPE Act which would have entitled the appellant to lodge an objection to the development application, and to written notice of the application to the Tribunal for review pursuant to s 278 of that Act. If the appellant were able to satisfy the Court of those matters, it would have established an entitlement to be made a party to the Tribunal proceedings under subsection 28(3) of the AAT Act, there being no element of discretion involved.

33. The jurisdiction of the Court to grant a stay of the Tribunal's order remains discretionary, and so, by analogy, must any order otherwise affecting the operation or implementation of the Tribunal's decision. It is put on behalf of the developers that a factor militating against the exercise of the discretion is the appellant's failure to apply to have the appeal heard with expedition.

34. In this regard I note that the appeal was instituted on 4 September, within the prescribed time. The Court immediately set a time and date to settle the appeal papers (10:00am on 21 October). On 16 September a formal amendment was made to the notice of appeal to add the Commissioner for Land and Planning as a respondent. On 24 September, the notice of motion bringing the present application was filed. By that date, not all respondents had even entered an appearance. The notice of motion was returnable for 26 September when it was adjourned by consent to 3 October. It seems to me that all steps have been taken thus far by the appellant with reasonable expedition, and there is no delay relevant to the exercise of the discretion. For the Court to be in a position to hear the appeal prior to 24 November it would be necessary for a matter already listed to be displaced, with expense and inconvenience to the parties involved: and time might also need to be allowed for a reasoned decision, following the hearing of the appeal, to be delivered prior to 24 November. The appellant has not in my opinion acted in any way which should deprive it of the exercise of discretion to which it might otherwise be entitled.

35. I am satisfied that if the application for review were to be heard by the Tribunal before the appeal to this Court, the appeal would be rendered nugatory or ineffective. This is a substantial factor in favour of the grant of a stay: Wilson v Church (No 2) (1879) 12 Ch D 454, cited in Alexander v Cambridge Credit Corporation Limited, supra, at 695.

36. It seems to me that the balance of convenience will best be served by the making of an order which will result in the appeal to this Court being determined before the hearing of the application for review in the Tribunal. This seems to me necessary to secure the effectiveness of the hearing and determination of the appeal: subsection 47(2), AAT Act. That subsection empowers to the Court to make such order affecting the operation or implementation of the Tribunal's decision as the Court considers appropriate to achieve that result. Clearly the result cannot be achieved merely by staying the Tribunal's order. The purpose can be achieved, in my opinion, only by making an order staying proceedings in the Tribunal until the appeal has been heard and determined. I make an order in those terms.

37. I am minded to order that the costs of this application be costs in the appeal, but will provide the parties with an opportunity to make submissions before making any order about costs.

I certify that the preceding 37 (thirty-seven) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.

Associate:

Date: 9 October 2003

Counsel for the appellant Dr J E Griffiths

Solicitor for the appellant Mallesons Stephen Jacques

Counsel for the 2^nd and 3^rd respondents Mr D J C Mossop

Solicitor for the 2^nd and 3^rd respondents Bradley Allen

Date of hearing 3 October 2003

Date of decision 9 October 2003