KOSTEZKY -v- CITY OF JOONDALUP [2026] WASC 335

[2026] WASC 335 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : KOSTEZKY -v- CITY OF JOONDALUP [2026] WASC 335 CORAM : STRK J HEARD : 10 OCTOBER 2024 DELIVERED : 14 AUGUST 2026 FILE NO/S : CIV 1851 of 2023 BETWEEN : ILYA NICHOLAS KOSTEZKY Plaintiff AND CITY OF JOONDALUP First Defendant DALE PAGE Second Defendant CHRIS LEIGH Third Defendant THE WEST AUSTRALIAN PLANNING COMMISSION Fourth Defendant THE STATE OF WESTERN AUSTRALIA Fifth Defendant GAIL MCGOWAN Sixth Defendant ANDREW COOK Seventh Defendant -- 1 of 93 -- [2026] WASC 335 Page 2 PAUL ELLENBROEK Eighth Defendant Catchwords: Tort - Misfeasance in public office - Elements of the tort - Applications by defendants for summary judgment alternatively strike out - Whether the alleged acts are capable of being characterised as an exercise of a public power or a de facto exercise of power incidental to public office - Mental element - Whether mental element so obviously untenable that the claim could not possibly succeed at trial in the ordinary way Legislation: Rules of the Supreme Court 1971 (WA) O 16 r (1)(a), O 20 r 19(1)(a), (b), (d) Result: Judgment to be entered for the defendants Category: B Representation: Counsel: Plaintiff : In Person First Defendant : EM Heenan SC Second Defendant : EM Heenan SC Third Defendant : EM Heenan SC Fourth Defendant : IA Repper Fifth Defendant : IA Repper Sixth Defendant : IA Repper Seventh Defendant : IA Repper Eighth Defendant : IA Repper -- 2 of 93 -- [2026] WASC 335 Page 3 Solicitors: Plaintiff : In Person First Defendant : DLA Piper Australia - Perth Second Defendant : DLA Piper Australia - Perth Third Defendant : DLA Piper Australia - Perth Fourth Defendant : State Solicitor's Office Fifth Defendant : State Solicitor's Office Sixth Defendant : State Solicitor's Office Seventh Defendant : State Solicitor's Office Eighth Defendant : State Solicitor's Office Case(s) referred to in decision(s): Auro Pty Ltd and Western Australian Planning Commission [2008] WASAT 253 Bride v The Australian Bank Limited (Unreported, WASC Full Court, Library No 950632AC, 21 November 1995) Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 4] [2020] WASC 382 Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 Calveley v Chief Constable of Merseyside Police [1989] AC 1228 Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 Chapel Road Pty Ltd v Australian Securities and Investments Commission (No 10) [2014] NSWSC 346; (2014) 307 ALR 428 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53; [2013] 2 NZLR 679 Day v William Hill (Park Lane) Ltd [1949] 1 KB 632 Deputy Commissioner of Taxation v Frangieh (No 3) [2017] NSWSC 252; (2017) 321 FLR 1 Dunlop v Woollahra Municipal Council [1982] AC 158 Ea v Diaconu [2020] NSWCA 127; (2020) 102 NSWLR 351 Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98 English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 Farah Custodians Pty Limited v Commissioner of Taxation [2018] FCA 1185 H Hood Group Investments No 9 Pty Ltd v Advanced Braking Technology Ltd [2011] WADC 29; (2011) 76 SR (WA) 130 Hove v The University of Western Australia [2024] WASCA 37 Leerdam v Noori [2009] NSWCA 90; (2009) 227 ALR 553 Leinenga v Logan City Council [2006] QSC 294 -- 3 of 93 -- [2026] WASC 335 Page 4 Lock v Australian Securities and Investments Commission [2016] FCA 31; (2016) 248 FCR 547 Mazzuchelli v Mazzuchelli [2007] WASC 21 MJL v The State of Western Australia [2015] WASC 348 Moder v Commonwealth of Australia [2012] QCA 92; (2012) 261 FLR 396 Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314 Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307 NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 Nyoni v Shire of Kellerberrin [2017] FCAFC 59; (2017) 248 FCR 311 Obeid v Lockley [2018] NSWCA 71; (2018) 98 NSWLR 258 Pisano v South Metropolitan Health Service [2023] WASCA 80; (2023) 414 ALR 130 Robinson v Quinlivan [2005] WASC 196 Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572 Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149 Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 Society of Lloyd's v Henderson [2007] EWCA Civ 930; [2008] 1 WLR 2255 State of New South Wales v Spedding [2023] NSWCA 180; (2023) 309 A Crim R 519 Three Rivers District Council v Bank of England [No 3] [2001] UKHL 16; [2003] 2 AC 1 Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 Watkins v Secretary of State for the Home Department [2006] UKHL 17; [2006] 2 AC 395 -- 4 of 93 -- [2026] WASC 335 Page 5 Table of Contents Introduction ................................................................................................................................ 7 Mr Kostezky's claim ................................................................................................................... 7 Overview of the claims made against the CoJ defendants and the WAPC defendants as outlined by Mr Kostezky ........................................................................................................ 8 The Property and permit issued in August 2011 .................................................................... 9 Potential for rezoning to a higher density ............................................................................. 10 Rezoning ............................................................................................................................... 10 The claims against the CoJ defendants ................................................................................. 10 Pre-application engagements with the planners of the City of Joondalup ....................... 10 August 2017 - Mr Kostezky is told that the development is not supported ..................... 11 Telephone call with Mr Leigh on 7 September 2017 ....................................................... 14 Letter to the CEO of the City of Joondalup of 5 November 2017.................................... 15 Freedom of information .................................................................................................... 15 Alleged misfeasance in public office - letter from Mr Leigh dated 20 November 2017 . 16 Discussion with Debra Edgar, Customer Relations Advocate ......................................... 25 Alleged abuse of public power and authority - Ms Page.................................................. 26 The claims against the WAPC defendants ........................................................................... 28 Assistance sought from the WAPC on 21 September 2017 ............................................. 28 Confirmation of the advice of Ms Hodson by Mr Cook .................................................. 31 Attempt made on 28 September 2018 to secure a meeting .............................................. 32 Alleged misfeasance in public office by Mr Cook ........................................................... 32 Alleged misfeasance in public office by Mr Ellenbroek .................................................. 34 Further communications sent by Mr Kostezky................................................................. 37 Alleged misfeasance in public office by Ms McGowan .................................................. 38 Freedom of information request made to the Department of Planning, Lands and Heritage ............................................................................................................................ 44 Damages ............................................................................................................................... 46 The applications ........................................................................................................................ 46 The application of the CoJ defendants ................................................................................. 46 The application of the WAPC defendants ............................................................................ 49 Mr Kostezky's response to the applications.......................................................................... 52 Relevant statutory provisions and principles ............................................................................ 53 Summary judgment .............................................................................................................. 54 Strike out .............................................................................................................................. 56 Disposition ................................................................................................................................ 59 The need for leave ................................................................................................................ 59 -- 5 of 93 -- [2026] WASC 335 Page 6 Service of the applications.................................................................................................... 61 Whether summary judgment is available in the absence of filed defences .......................... 63 Applicable legal principles - tort of misfeasance in public office ........................................ 64 Consideration of the issues raised by the defendants ........................................................... 66 No exercise of public power ............................................................................................. 67 Absence of requisite mental element ................................................................................ 82 Whether there is a need to determine preliminary issues ................................................. 83 Additional issues .............................................................................................................. 85 Should leave to replead be granted ....................................................................................... 87 Conclusion and orders .............................................................................................................. 87 Sch A - cl 4.3.4 and cl 4.3.5 ..................................................................................................... 89 Sch B - Mr Kostezky's claim for damages ............................................................................... 90 -- 6 of 93 -- [2026] WASC 335 STRK J Page 7 STRK J: Introduction 1 Ilya Nicholas Kostezky commenced this proceeding by a writ of summons against eight defendants. The first, second and third defendants are described by Mr Kostezky as the 'CoJ defendants'. They are the City of Joondalup, Dale Page and Chris Leigh. The fourth to eighth defendants are described by Mr Kostezky as the 'WAPC defendants'. They are the State of Western Australia, the West Australian Planning Commission, Gail McGowan, Andrew Cook and Paul Ellenbroek. In these reasons I adopt Mr Kostezky's description of the two defendant groups. 2 Two applications are pressed. In summary, it is the position of the CoJ defendants and the WAPC defendants that Mr Kostezky's claims taken at their highest, have no prospects of success and that the action ought be dismissed. Mr Kostezky opposes the applications. Mr Kostezky's claim 3 A writ must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.1 At the option of the plaintiff, subject to certain exceptions, a statement of claim may be indorsed on the writ.2 In this case, what is described as the indorsement to the writ of summons stands at 258 paragraphs and is over 90 pages. There Mr Kostezky describes in detail the basis upon which he maintains a claim against each of the defendants. As was suggested on behalf of the WAPC defendants, in substance the writ is indorsed with a statement of claim.3 4 In approaching the applications, I have given careful consideration to Mr Kostezky's claims as pleaded, which I outline below. Mr Kostezky acknowledges that his pleading is lengthy and complicated.4 When that detailed pleading is carefully reviewed it is plain that many of the facts pleaded are not relied upon to ground the claims made against the named defendants. They appear to have been included by Mr Kostezky as background and context. The following is not intended to be a complete recitation of the facts pleaded or matters 1 Rules of the Supreme Court 1971 (WA) O 6 r 1(1). 2 Rules of the Supreme Court 1971 (WA) O 6 r 3. 3 WAPC defendants' outline of submissions filed on 17 May 2024, par 1. 4 Mr Kostezky's outline of submissions filed in opposition to the application of the CoJ defendants on 5 July 2024, par 8; Mr Kostezky's outline of submissions filed in opposition to the application of the WAPC defendants on 5 July 2024, par 8. -- 7 of 93 -- [2026] WASC 335 STRK J Page 8 raised. Nor is the recording of the same to be understood as the court having made any findings of fact with respect to the matters alleged. Overview of the claims made against the CoJ defendants and the WAPC defendants as outlined by Mr Kostezky 5 In the first nine paragraphs of the indorsement, Mr Kostezky outlines his claim against the CoJ defendants and the WAPC defendants. So that the matters described by Mr Kostezky (as summarised below) might be understood in context, it is helpful to record that outline here. 6 Mr Kostezky says that Ms Page, Mr Leigh, Ms McGowan, Mr Cook and Mr Ellenbroek were all holders of public office when they dealt with him; in their conduct and actions toward him, acted or purported to act, in the carrying out by delegation or otherwise, of public duties being incidents of their public office; and were joint and concurrent tortfeasors. He alleges that damage to him has been caused by their inseparable interwoven actions. 7 Mr Kostezky says that they all had a duty: (a) to act lawfully, reasonably, fairly, honestly and in good faith, in dealings with him; (b) to act in conformity with the requirements of the Public Sector Management Act 1994 (WA), pt 2, s 9, (Principles of conduct by public sector bodies etc. (a)(i), (b) and (c)); and (c) to accord procedural fairness to him, in actions and dealings which affected his rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. 8 As to Ms McGowan, Mr Cook and Mr Ellenbroek, Mr Kostezky says that they each: owed a duty to [him] under the Planning and Development Act 2005, Part 2, Division 2, s. 14 (d), WAPC Functions and Powers, 'to provide advice and assistance to any body or person on land use planning and land development and in particular to local governments in relation to local planning schemes and their planning and development functions;' 9 As to Ms Page and Mr Leigh, Mr Kostezky says that they each: -- 8 of 93 -- [2026] WASC 335 STRK J Page 9 owed a duty to [him], to provide advice and assistance to him prior to any formal application for a Planning Permits in relation to his proposed 3 Grouped Dwelling Development, the subject of this action, and to have due regard to the Planning and Development Act 2005, its subsidiary legislation, rules and regulations, and its related City of Joondalup Local (Development) Planning Scheme No 2, and its own and that of the State of Western Australia related Planning Policies and Strategies. 10 He complains that in relation to advice that was given to him that would prohibit his proposed development (as pleaded), the CoJ defendants, as a matter of fairness, common sense, and justice, owed a duty to him to provide reasons and/or design principles, to justify the prohibiting advice. 11 As to the City of Joondalup, the State of Western Australia and the West Australian Planning Commission (WAPC), Mr Kostezky says that: (a) '[t]he City of Joondalup is a Local Government and is vicariously liable for the actions, including failure to act, of the CoJ Public Officer Defendants'; and (b) '[t]he West Australian Planning Commission, [the WAPC], is an agent of the State Government of Western Australia, and both are vicariously liable for the actions, including failure to act, of defendants Gail McGowan, Mr Cook and Mr Ellenbroek.' The Property and permit issued in August 2011 12 Mr Kostezky in the indorsement described the property that was the subject of his interactions with the CoJ defendants and the WAPC defendants, which particularly inform this action. 13 In March 2004 Mr Kostezky purchased the property known as 81 Conidae Drive, Heathridge, in the City of Joondalup (the Property). When purchased, there was built on it a dwelling and a free-standing steel framed studio. 14 Mr Kostezky says that he applied to the City of Joondalup for a town planning permit to construct a '2 Gr Dw' (two grouped dwelling) development on the Property, and a permit was issued on 26 August 2011 (Permit No DA11/0652). He says that the '2 Gr Dw' development was based on renovating and extending the original dwelling, and development of a new dwelling which was to incorporate the structure -- 9 of 93 -- [2026] WASC 335 STRK J Page 10 of the existing free-standing steel framed studio. At the time the designated Residential Design Code (R-Code) for the property was R20.5 Potential for rezoning to a higher density 15 By February 2013 Mr Kostezky had renovated and extended the existing dwelling on the Property, and had substantially completed the second dwelling (incorporating the free-standing steel framed studio). During that year he formed the view that the Property was very likely to be rezoned to a higher density, and so paused completing the development pursuant to Permit No DA11/0652, and did not pursue the issue of separate titles. He instead turned his mind to designing and building a third dwelling on the Property.6 Rezoning 16 On 12 February 2016 the Property was rezoned from R20 to dual code R20/R40 by an amendment to the Local (Development) Planning Scheme.7 Mr Kostezky recorded that among other matters, the amended scheme included new clauses 4.3.4 and 4.3.5, which are reproduced at sch A to these reasons. Mr Kostezky says that upon gazettal of the amendment, his Property (with a site width of 29.94 metres) qualified for the higher R40 zoning, to be treated as such by the R-Codes and the planning framework.8 The claims against the CoJ defendants Pre-application engagements with the planners of the City of Joondalup 17 Mr Kostezky described having attended two 'detailed face to face pre-town-planning-application liaison sessions' with two senior town planners of the City of Joondalup, Andrew McBride and Tim Thornton. No claim is prosecuted by Mr Kostezky against either of them. 18 At paragraphs 30 to 38 of the indorsement, Mr Kostezky described his meeting with Mr McBride in about mid 2016 at which a proposed third dwelling on the Property was discussed. He particularly recorded that during the 'detailed liaison, Mr McBride made no comment at all, about the unusual configuration, nor of the obvious non-rectangularity, of the proposed lot for the proposed 3rd dwelling, nor of the obviously 5 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 15 - 17. 6 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 18 - 22. 7 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 23 - 24. 8 Indorsement of claim to the writ of summons filed on 2 August 2023, par 27. -- 10 of 93 -- [2026] WASC 335 STRK J Page 11 less than 10 metre width at the street boundary of the proposed lot for the proposed 3rd dwelling of the proposed 3 Gr Dw development.' Further, Mr Kostezky recorded that '[r]elying on the results of the meeting with Mr McBride, that there were no obvious significant conditions to hinder the development and on his own extensive experience in housing design and building, in Victoria prior to 1985, and in Western Australia from 1986 to 1990, [Mr Kostezky] continued the ongoing work of design and familiarization in preparation for the realisation of the 3 Gr Dw Development.'9 19 At paragraphs 39 to 45 of the indorsement, Mr Kostezky described his meeting with Mr Thornton on 5 July 2017. He describes how he brought with him to that meeting 'paper prints of digital plans for the virtually fully developed proposed 3 Gr Dw development, which showed the two existing dwellings under Town Planning Permit No DA11/0652, and a fully developed design for the new 3rd dwelling, in compliance with the R40 zoning, showing areas, and adjusted boundaries for the 3 proposed lots.' Among other things, Mr Kostezky says that '[d]uring the detailed liaison, Mr Thornton, like Mr McBride made no comment at all, about the obvious unusual configuration, nor of the obvious non-regularity, nor of the obvious non-rectangularity, of the proposed lot for the proposed 3rd dwelling, nor of the obviously less than 10 metre width at the street boundary available to the proposed 3rd Dwelling of the proposed 3 Gr Dw development.' 20 Then, relying on what he understood from his discussions with Mr McBride and Mr Thornton, that is, 'that there was no obvious basic town planning deficiency in what had been presented and discussed, and relying on his skills and experience, [Mr Kostezky] further refined the drawings, including all plans, sections, elevations, and most dimensions, virtually ready for a Town Planning Development, or Building Permit Application.' Mr Kostezky on 4 August 2017 sent by email to Mr Thornton digital copies of what were described as fully developed drawings, with six photographs.10 August 2017 - Mr Kostezky is told that the development is not supported 21 Mr Kostezky says that by telephone on 11 August 2017, Mr Thornton advised him that at a meeting earlier that day with Mr Thornton's planning coordinator and planning manager, the submitted plans were discussed and assessed, and it had been decided 9 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 37 - 38. 10 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 46 - 47. -- 11 of 93 -- [2026] WASC 335 STRK J Page 12 that the City of Joondalup was not in a position to support the development. Particulars of that telephone call provided by Mr Kostezky included that he was told (among other things) that:11 (a) the actual shape of the proposed Lot C (for the third house), is problematic as it does not align with the intent of the higher coding for the area or with State Planning policy that guides subdivision, being an irregular shape; (b) that the ruling at this stage did not prevent Mr Kostezky from lodging a town planning application, but that the outcome of the application would be unfavourable for him; (c) that Mr Kostezky had the option to lodge to the WAPC for subdivision approval for the lots to have greater certainty of having a development on the back half of Lot C approved; (d) that the City of Joondalup believed that it was unlikely that the WAPC would approve his lots, which was a strong reason for why an application for development approval would be unlikely to be supported by the City of Joondalup; and (e) that after lodging the town planning application Mr Kostezky could exercise his right to appeal the decision to the State Administrative Tribunal (SAT). 22 Mr Kostezky says that during the conversation he told Mr Thornton that he disagreed with the advice given to him by Mr Thornton, and why. 23 While Mr Kostezky says that Mr Thornton had promised to arrange for him to meet with a more senior officer who had delegation to make a decision on his proposal before the City of Joondalup provide him with anything in writing, on 17 August 2017 Mr Kostezky received an email from Mr Thornton which (among other things) recorded that:12 (a) Mr Kostezky's 'design drawings had been reviewed by planning staff and we confirm that the City of Joondalup's position in the event that a formal application is lodged, is that the 11 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 48.2 - 48.6. 12 Indorsement of claim to the writ of summons filed on 2 August 2023, par 52. A copy of the email is attached to the affidavit of AM Pull affirmed on 5 April 2024, AMP-1; and the text of the email is also reproduced in a document attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 1. -- 12 of 93 -- [2026] WASC 335 STRK J Page 13 development as proposed would not be supported for the following reasons:' 'The proposed lot configuration does not meet the intent of Development Control Policy 2.2 Residential Subdivision (clause 3.4), specifically regarding proposed "Lot C" being of an irregular lot shape.' 'The development is not considered to meet the requirements of clause 4.3.5 (i) of the City's District Planning Scheme No. 2 (DPS2) in relation to the frontage requirement of 10 metres.' 'The proposed lot configuration is not considered to meet the objective of "orderly and proper planning" as outlined under clause 67 of the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2, given the irregular lot shape which has resulted due to the footprint of the existing development on site.' (b) notwithstanding the ability to adapt/modify aspects of the proposed dwelling design to meet the deemed-to-comply requirements or design principles of the R-Codes, the City of Joondalup would not be supportive of the proposed development, primarily on the basis of the lot configuration; (c) the City of Joondalup acknowledged however that it is not the decision making body for residential subdivision, which rather lies with the Western Australian Commission;13 (d) if the WAPC were to approve the lot configuration through the process of subdivision, the City of Joondalup would then be in a position to consider an application for development approval on the lots. 24 Mr Kostezky formed the view that the advice conveyed by Mr Thornton was invalid, and he pleaded that seeing the advice in writing caused him severe shock and distress.14 He further pleaded that to enable him to pursue further his lawful right to his proposed three grouped dwelling development, he needed either the withdrawal of the advice, or confirmation, reasons, and clarification of it:15 13 Mr Thornton had referred to 'Western Australian Commission' and, as identified by Mr Kostezky in his indorsement of claim at par 148.2 that reference contained a typographical error, with the correct reference being the 'WAPC'. 14 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 54 - 56. 15 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 57 - 58. -- 13 of 93 -- [2026] WASC 335 STRK J Page 14 Until withdrawal or confirmation, reasons and clarification were provided by 'the City' [Mr Kostezky] could not act but to submit to the oppressive purported power and force of the authority behind the advice provided, and was forced to halt and stop work on his 3 Gr Dw development and suffer the damage and the consequences of the interruption to his plans and life. 25 On 18 August 2017 Mr Kostezky says that he telephoned Mr Thornton in which he (among other things) sought to persuade there to be a reconsideration of the advice, which conversation ended without Mr Thornton having ceded anything, and with Mr Thornton having confirmed the advice contained in the 17 August 2017 email.16 Telephone call with Mr Leigh on 7 September 2017 26 At paragraphs 64 to 74 of the indorsement, Mr Kostezky described a telephone conversation that he had with Mr Leigh, the manager of the City of Joondalup planning department (the third defendant) on 7 September 2017. 27 Mr Kostezky says that the conversation lasted one hour and four minutes, and that in the course of that conversation Mr Leigh had indicated that he was calling in response to Mr Kostezky's communications by phone and email with Mr Thornton; that Mr Kostezky repeatedly noted that the matters should properly be addressed at the promised meeting, and he conveyed to Mr Leigh that he did not feel comfortable with the conversation as he felt that he was at a disadvantage, not being face to face and caught unprepared and unable to properly argue his position; and that reference was made to the early face to face liaisons with Mr McBride and Mr Thornton, the emails of the 17 August 2017 and 5 September 2017 from Mr Thornton to Mr Kostezky, and Mr Kostezky's phone conversations with Mr Thornton of the 11 and 18 August 2017. 28 The matters discussed included 'the 10 metre issue as applying to the site of the proposed lot C alone or to the whole of the 3 Gr Dw development site'; the 'irregular site issues'; '[g]uest parking and landscaping'; and that 'the WAPC was the decision maker for the development'. 29 Mr Kostezky says that during the conversation Mr Leigh confirmed to him that Mr Leigh was the manager of the planning department and that together with his planning coordinator, and 16 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 59 - 60. -- 14 of 93 -- [2026] WASC 335 STRK J Page 15 Mr Thornton, had examined, discussed and considered the drawings and photographs submitted; that Mr Leigh 'confirmed in totality his support of, and his agreement with the advice conveyed to [Mr Kostezky] by Mr Thornton in his email to [Mr Kostezky] of 17 August 2017'; and that Mr Leigh confirmed that he possessed the authority of the City of Joondalup for the advice given to Mr Kostezky by Mr Thornton in his email of 17 August 2017.17 Letter to the CEO of the City of Joondalup of 5 November 2017 30 On 5 November 2017 Mr Kostezky sent a letter to the Chief Executive Officer (CEO) of the City of Joondalup, Gary Hunt. He acknowledges that he was critical in that letter of Ms Page (the second defendant), Mr Leigh and other members of the planning department of the City of Joondalup. He records that at the beginning of the letter he wrote as follows: I submit that I have been damaged, abused and oppressed by the wilful abuse of power by the City of Joondalup and the City's Planning Department. My sense of Security, Fair Play and Justice has been shaken to its very foundation. My Financial Damage is not insubstantial and the effect on my peace of mind, my health, my plans for the future, I submit, warrants a Legal Action for Misfeasance in Public Office. This letter attempts to avoid such action. 31 He also records in the indorsement that by way of background, in the letter sent to Mr Hunt Mr Kostezky had described previous interactions with the planners of the City of Joondalup where he believed he had been improperly treated.18 Freedom of information 32 Mr Kostezky records that on about 29 September 2019 he received 28 documents through a Freedom of Information application to the City of Joondalup, and noted that 10 of the documents concerned the proposed '3 Gr Dw' development the subject of this action.19 17 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 69 - 71. 18 Indorsement of claim to the writ of summons filed on 2 August 2023, par 82. A copy of the letter is attached to the affidavit of AM Pull affirmed on 5 April 2024, AMP-2. 19 A copy of the bundle of documents is attached to the affidavit of AM Pull affirmed on 5 April 2024, AMP-3. -- 15 of 93 -- [2026] WASC 335 STRK J Page 16 33 Among other things he records that the 'documents and memoranda reveal that they serve beyond a proper routine administrative recording purpose, to improperly focus on the character and conduct of [Mr Kostezky] and to serve in support of the propriety of the planning department'; that the 'documents and memoranda reveal an improper targeted dossier to put on record allegations and purported evidence, to be used if needed to put [Mr Kostezky] in his place, to denigrate him, and to use against him'; that 'the CoJ FOI No's 01 to 27 documents' and memorandas' statements, grammar and feel, are those of an improper multi chapter, coordinated, malice induced, after the fact reconstructed story, in support of "planning", particularly as it relates [to Mr Kostezky's] character, words and conduct'; that the 'documents and memoranda cite circumstances and fact, improperly falsified, irrelevant, imagined, projected, and/or distorted, loosely related to the truth, and recklessly indifferent to the harm and damage to [him]'; and that the 'documents' and memorandas' statements are an ideal fit for a defence of a future letter by [Mr Kostezky] to Mr Hunt, dated 5 November 2017, and as evidence to support the findings of the future "internal review", cited in the future letter to Mr Kostezky dated 7 February 2018, from the defendant Dale Page, as pleaded below.' 34 Mr Kostezky describes his own conduct, and the consequences that flowed from it, in the following terms at paragraph 93: From the beginning, and particularly in relation to his proposed 3Gr Dw development, [Mr Kostezky's] standing his ground and his defense of his position, and his failure to blindly and with due humility to submit to the purported power of the planning officers of the [City of Joondalup], [Mr Kostezky] incurred the undeserved notoriety, resentment and malice of the [City of Joondalup's] planning officers involved, resulting in the reprisal in tribal support of the [City of Joondalup's] Planning Department, which manifested itself in the conduct of defendants Mr Leigh and Dale Page, yet to be pleaded hereunder. Alleged misfeasance in public office - letter from Mr Leigh dated 20 November 2017 35 Under the heading 'Misfeasance in public office', Mr Kostezky records that he received a letter from Mr Leigh on 20 November 2017; and that the telephone call of 7 September 2017 (described above) and -- 16 of 93 -- [2026] WASC 335 STRK J Page 17 the letter dated 20 November 2017 are the only contacts that Mr Kostezky has had with Mr Leigh.20 36 Mr Kostezky further records that by the phone conversation of 7 September 2017 and letter dated 20 November 2017, Mr Leigh confirmed and endorsed the advice in the email sent by Mr Thornton to Mr Kostezky on 17 August 2017, and that he 'is responsible and culpable for the advice'. 37 As to malice and the absence of good faith, Mr Kostezky asserts that: The letter from Mr Leigh manifests the presence of malice and the absence of good faith on the part of Mr Leigh towards [Mr Kostezky]. 38 The particulars to that plea are set out at paragraphs 98.1 to 98.14, and are here reproduced: particulars 98.1. In that the letter would not have been written at all but for [Mr Kostezky's] letter to Mr Hunt. 98.2. In that the letter refers only to 'your correspondence dated 5 November 2017', the date of [Mr Kostezky's] letter to Mr Hunt CoJ CEO, as the source of the reason for Mr Leigh's letter, and apart from citing the inconsistency in [Mr Kostezky's] letter relating to Mr Andrew McBride, does not cross, respond, comment or resolve any of the issues or concerns of [Mr Kostezky] in the real world context leading up to his letter. 98.3. In the tone and content of the paragraphs of the letter, and of those paragraphs absent, that would have served as a proper response to the letter to the CEO of CoJ of 5 November 2017, and to the email to Mr Thornton of 5 September 2017, and to convey a reason or acknowledgement for the dismissal of [Mr Kostezky's] requests for a meeting. 98.4. In that the letter does not apologize for the 75-day delay for the prompt written response promised by Mr Leigh during the phone conversation with [Mr Kostezky] on 7 September 2017. 98.5. In that the letter does not acknowledge or respond to any of the concerns of [Mr Kostezky] in the letter to Mr Hunt CEO. 20 Indorsement of claim to the writ of summons filed on 2 August 2023, par 96. A copy of the letter is attached to the affidavit of AM Pull affirmed on 5 April 2024, AMP-4. -- 17 of 93 -- [2026] WASC 335 STRK J Page 18 98.6. In that Mr Leigh makes the accusation against [Mr Kostezky] that he had not been truthful at paragraphs 24-30 in the letter to Mr Hunt CEO, in [Mr Kostezky's] account of meeting with Mr McBride in early June 2017. 98.6.1. This was an innocent error by [Mr Kostezky], in that he had mistaken the year, the meeting having occurred in about early June 2016, obviously before Mr McBride had ceased employment with the CoJ. 98.7. In that the letter uses the device of [Mr Kostezky's] error in the date of the meeting with Mr McBride to imply that [Mr Kostezky's] transgression and dishonesty pervade and taint the content of [Mr Kostezky's] letter to the CEO, as well as communications and dealings with the CoJ planners, and thus can be dismissed. 98.8. In that prior to the letter there was no due offer or opportunity for [Mr Kostezky] to explain or exonerate himself from his alleged dishonesty, nor information of an attempt to verify or discover the truth from Mr McBride. 98.9. In that the letter by its general chiding tenor and by its implied dishonesty, transgressions, and failures of [Mr Kostezky], is designed to put [Mr Kostezky] in his place and to denigrate him. 98.10. In that, because of [Mr Kostezky's] implied inability to understand the issues, [Mr Kostezky] 'may need to engage the services of a suitably qualified person in designing the(ir) development'. 98.11. In that the letter dismisses the promises of a meeting made by Mr Thornton mentioned in emails and phone calls from 14 of August 2017 to 5 September 2017. 98.12. In that the letter dismisses the request for a meeting at the end of the letter to Mr Gary Hunt CEO. 98.13. In that the letter dishonors Mr Leigh's promise to [Mr Kostezky] made at the end of the phone call of 7 September 2017 to respond in writing to the issues raised by [Mr Kostezky], including those in the email to Mr Thornton of 5 September 2017, and of a meeting following. 98.14. In that the letter drafted by Mr Thornton at the request of Mr Leigh, as a consequence of Mr Leigh's promise to [Mr Kostezky] to respond in writing at the end of his Mr Leigh's phone conversation with [Mr Kostezky] as pleaded -- 18 of 93 -- [2026] WASC 335 STRK J Page 19 above, although prepared, was never sent, nor any explanation or reason provided for not sending it. 39 Mr Kostezky says that the content and omissions of Mr Leigh's letter, including those pleaded; the very sending of the letter as the respondent to Mr Kostezky's letter to Mr Hunt, with the implied, assumed public power and authority of the CEO of the City of Joondalup; Mr Leigh's advice to Mr Kostezky during the phone conversation with him on 7 September 2017; and Mr Leigh's advice to Mr Kostezky in the letter of 20 November 2017, amounted to 'a knowing conscious abuse by Mr Leigh of his public office and public power or authority, or are in reckless indifference as to the limits to or restraints upon his public power or authority'. Particulars of that allegation are set out at paragraphs 99.5 to 99.9.9 of the indorsement, and are here reproduced: particulars 99.5. In that Mr Leigh dismisses all of his and Mr Thornton's advice to [Mr Kostezky] prior to his letter as 'preliminary guidance' and as having at law no substance or significance. 99.6. In relation to the 10 metre at the street boundary advice: 99.6.1. In relation to the advice, 'The development is not considered to meet the requirements of clause 4.3.5 of the City's "District" Planning Scheme No. 2 (DPS2) in relation to the requirement of 10 metres.' (email from Mr Thornton, 17 August 2017): 99.6.1.1. Mr Leigh knew or was recklessly indifferent to the fact that, contrary to his advice, [Mr Kostezky's] proposed 3 Gr Dw development did indeed comply 31 with clause 4.3.5 of the City's "District" Planning Scheme No. 2 (DPS2) in relation to the requirement of 10 metres', 99.6.1.2. Mr Leigh knew or was recklessly indifferent to the fact that [Mr Kostezky's] proposed development was a Built Strata Scheme of 3 Grouped Dwellings on one development site, to which 'the requirement of 10 metres' referred to, rather than to each individual proposed Strata lot of the proposed 3 Gr Dw development site. -- 19 of 93 -- [2026] WASC 335 STRK J Page 20 99.6.1.3. Mr Leigh knew or was recklessly indifferent to the fact that contrary to his advice, the condition, being 'deemed to comply' in the amended R Codes, was non-discretionary and that the CoJ, nor he, nor the State Administrative Tribunal, had power or jurisdiction other than compliance with nondiscretionary issues. 99.6.2. Mr Leigh knew or was recklessly indifferent to the fact that after the gazetting of Amendment No. 73 in February 2017, Clauses 4.3.4 and 4.3.5 of the CoJ's LPS (DPS) No.2, with the insertion of clause C1.5 (i) and (ii) as 'deemed to comply' conditions, other than qualifying [Mr Kostezky's] development site for the higher R40 density zoning, revealed no further power under the CoJ's LPS (DPS) No.2 to limit the development of [Mr Kostezky's] 3 Gr Dw Development site. 99.6.3. Mr Leigh knew or was recklessly indifferent to the fact that before the final gazetting, in relation to the 10 metre issue, different versions of Amendment No 73, were presented to the WAPC for approval. The CoJ's proposals were in essence, that qualification for the higher density zoning of a dual zoned development, was to be at the absolute discretion of the CoJ, and any development so favoured, was to be in non-discretionary conformity with the CoJ's Local Planning Policy, and further 99.6.4. Mr Leigh knew or was recklessly indifferent to the fact that in the proposed Amendments each proposed lot in such a development was to be subject to a non- discretionary minimum of a 10 metre width, at the street boundary and/or frontage. 99.6.5. Mr Leigh knew or was recklessly indifferent to the fact that before the final gazetting, the proposed Amendment 73 to the CoJ LPS (DPS) No2 was manifested with the inclusion of at least two versions to the 10 metre width requirement, with each version in essence being a minor variation as described in the previous 2 paragraphs. 99.6.6. Mr Leigh knew or was recklessly indifferent to the fact that shortly before final gazetting of Amendment 73, the WAPC indicated to the CoJ, by a letter, dated 17 October 2014, reference TPS/1321, -- 20 of 93 -- [2026] WASC 335 STRK J Page 21 from Mr Tim Hillyard, Secretary of the WAPC, that 'The amendment will require further detailed consideration' …….., and 99.6.7. Mr Leigh knew or was recklessly indifferent to the fact that the final result was that the WAPC declined to give effect to the CoJ's desired versions, resulting in the true version cited in the advice to [Mr Kostezky], and 99.6.8. Mr Leigh knew or was recklessly indifferent to the fact that the CoJ's desired rejected versions of Amendment No 73 to its LPS (DPS) No 2 were intended but failed to confer on the CoJ the power and meaning and effect that was knowingly, invalidly, put as advice to [Mr Kostezky], and which for [Mr Kostezky] had the intended result of halting [Mr Kostezky's] proposed 3 Gr Dw development. 99.7. In relation to the Irregularity of site advice: 99.7.1. 'The proposed lot configuration does not meet the intent of Development Control Policy 2.2 Residential Subdivision (clause 3.4), specifically regarding proposed "Lot C" being of an irregular lot shape.' (email from Mr Thornton, 17 August 2017), and the advice, 99.7.2. 'As previously discussed and outlined in your email dated 14 August 2017, notwithstanding the ability to adapt/modify aspects of the proposed dwelling design to meet the deemed-to-comply requirements or design principles of the R-Codes, the City would not be supportive of the proposed development, primarily on the basis of the lot (implied lot C) configuration.' (email from Mr Thornton, 17 August 2017), and the advice, 99.7.3. 'The proposed lot configuration is not considered to meet the objective of "orderly and proper planning" as outlined under clause 67 of the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2, given the irregular lot shape which has resulted due to the footprint of the existing development on site.' (email from Mr Thornton, 17 August 2017', 99.7.4. Mr Leigh knew or was recklessly indifferent to the fact that all the reasons cited to [Mr Kostezky] for the irregular lot shape were manifestly without -- 21 of 93 -- [2026] WASC 335 STRK J Page 22 rational or lawful foundation and had no nexus to [Mr Kostezky's] proposed 3 Gr Dw development and were being used for the ulterior motive of preventing [Mr Kostezky] from proceeding with his proposed development. 99.8. In relation to decision maker is not the City, it's the WAPC advice: 99.8.1. In relation to the advice: 'The City acknowledges however that it is not the decision-making body for residential subdivision, which rather lies with the Western Australian Planning Commission (WAPC). ……….' (email from Mr Thornton, 17 August 2017) 99.8.2. Contrary to the advice, Mr Leigh knew or was recklessly indifferent to the fact that the City was in fact the relevant decision making body for issue of titles for lots created by developments such as [Mr Kostezky's], after the WAPC, as part of a major reform, delegated its relevant powers to the City of Joondalup under s16(3)(e) of the Planning and Development Act 2005, and as gazetted on 9 June 2009 and widely disseminated by Planning Bulletins of the WAPC Planning Bulletin No 92 in 2009 and in Planning Bulletin No 110 in December 2013. 99.8.3. Contrary to the advice, Mr Leigh knew or was recklessly indifferent to the fact that [Mr Kostezky's] proposed 3 Gr Dw Development did not propose the creation of a vacant lot, nor that it would otherwise come under an exemption in the delegation. 99.8.4. Contrary to the advice, Mr Leigh knew or was recklessly indifferent to the fact that [Mr Kostezky's] 3 Gr Dw development was fully under the authority of the CoJ as Decision Maker, not only for the development of 81 Conidae Drive, but also for the issue of separate titles for the resulting individual strata lots of the development. 99.9. In relation to guest parking and landscaping in verge advice: 99.9.1. In relation to the advice: 'Being a dual coded area, it would need to be demonstrated that the development meets the requirements of the City's [duplication and underlining in original] Residential Development Local Planning Policy Residential Development Local Planning Policy including schedule 1, part 2 -- 22 of 93 -- [2026] WASC 335 STRK J Page 23 which refers to requirements for visitor parking and landscaping within the verge for development at the higher (R40) density'. (email from Mr Thornton, 17 August 2017) 99.9.2. Contrary to the advice, Mr Leigh knew or was recklessly indifferent to the fact that the Residential Development Local Planning Policy in relation to the requirement was not consistent with the Joondalup D(L) PS No2. 99.9.3. Contrary to the advice, Mr Leigh knew or was recklessly indifferent to the fact that the Residential Development Local Planning Policy in relation to the requirement was not based on sound town planning principles. 99.9.4 Contrary to the advice, Mr Leigh knew or was recklessly indifferent to the fact that the requirements were not consistent with the R codes as required by clause 4.2.3 of the CoJ LPS (DPS) No 2: 'Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the R-Codes Shall conform to the provisions of those R-Codes'. 99.9.5. Contrary to the advice, Mr Leigh knew or was recklessly indifferent to the fact that the plans and photos submitted by [Mr Kostezky] to Mr Thornton by email on 4 August 2017, clearly demonstrate that there is more than ample space in the verge to easily meet even the higher irrelevant Residential Development Local Planning Policy demand of the advice. 99.9.6. Contrary to the advice, Mr Leigh knew or was recklessly indifferent to the fact that the plans and photographs which [Mr Kostezky] had presented to Mr Thornton, by email on 4 August 2017, showed clearly that the 29.94 metres width of the 3 Gr Dw Development site at street boundary and related verge, has not only ample space for visitor parking and landscaping, but also that there is already existing, mature landscaping, with an abundance of trees and other vegetation at the street boundary and the abutting Park on the Eastern and Southern boundaries, creating a setting that would be the envy of many a development. -- 23 of 93 -- [2026] WASC 335 STRK J Page 24 99.9.7. Contrary to the advice, Mr Leigh knew or was recklessly indifferent to the fact that the requirements, particularly for visitor parking, were not in keeping with the the [sic] visual character, bulk, and scale of the surrounding built form, and would be costly and difficult to integrate into the surrounding built environment. (CoJ Local Planning Policy - Clause 2 Objectives, bullet 1 and 5) 99.9.8. Contrary to the advice, Mr Leigh knew or was recklessly indifferent to the fact that the requirements, as well as being without lawful power, also did not meet the demands of common sense or fairness. 99.9.9. In any case, contrary to the advice, Mr Leigh knew or was recklessly indifferent to the fact that the advice was irrelevant if the advice cited for the noncompliance for the minimum 10 metre width at the street boundary was valid. 40 The alleged misfeasance in public office by Mr Leigh is further pleaded at paragraphs 100 to 109, which paragraphs are reproduced below: 100. By his phone call of 7 September 2017, and his letter of 20 November 2017 to [Mr Kostezky], Mr Leigh confirms and endorses the advice to [Mr Kostezky] in the email from Mr Thornton on 17 August 2017. 101. Mr Leigh at no time varied or retracted any of the advice in the email from Mr Thornton on 17 August 2017, or any of the advice during the phone call to [Mr Kostezky] of 7 September 2017, except to advise in his letter that it was 'preliminary guidance,' implying that it had at law no substance or significance. 102. Mr Leigh's phone call of 7 September and his letter of 20 November 2017, speaks with the assumed power and authority of Mr Hunt [City of Joondalup] CEO. 103. Mr Leigh exercised the abused power behind the advice, and is culpable for the advice. 104. Mr Leigh exercised the abused power behind the advice as an incident of his public office. 105. Mr Leigh intended [Mr Kostezky] to rely on the advice. -- 24 of 93 -- [2026] WASC 335 STRK J Page 25 106. Mr Leigh knew or was recklessly indifferent to the fact that [Mr Kostezky] would be forced to submit to the unlawful power of the advice and abandon his proposed development, and suffer and endure the financial, physical and psychological harm and damage due to being deprived of his right to realize lawfully his 3 Gr Dw development. 107. Mr Leigh abused his power as pleaded above, with the intention to harm, or with the knowledge of the probability of harming [Mr Kostezky], or with a conscious and reckless indifference to the probability of harming [Mr Kostezky]. 108. Mr Leigh knew or was recklessly indifferent to the fact that [Mr Kostezky] would be forced to accept that he could not realize his expected financial gain, to accept the loss of the work expended in getting the project to that state, to accept the loss of the satisfaction and pleasure of his swan song project and abandon his plans for his own and his children's future, 109. As a result of the misfeasance of Mr Leigh as pleaded, [Mr Kostezky] has suffered harm and damage to be advised prior to trial. Discussion with Debra Edgar, Customer Relations Advocate 41 Mr Kostesky describes at paragraphs 110 to 116 a telephone call he had with Debra Edgar, Customer Relations Advocate of the City of Joondalup, on 15 January 2018. 42 Among other things, he says that he was informed by Ms Edgar that Mr Hunt had not seen or been made aware of the registered letter to him, and that, instead the letter was treated by 'someone' as an 'enquiry', best dealt with by 'planning' for response; that several times during the conversation he requested that the letter to the CEO be presented to the CEO urgently; and that the same message was reiterated to Ms Edgar in a call made to Ms Edgar on 18 January 2018. 43 On 30 January 2018 Mr Kostezky sent Ms Edgar an addendum to his letter addressed to Mr Hunt, intended to update Mr Hunt as to the current position of Mr Kostezky, and requesting both the letter and the addendum be delivered to Mr Hunt.21 44 Among other things Mr Kostezky complained that he has not been able to ascertain whether his communications were received by 21 A copy of the communication is attached to the affidavit of AM Pull affirmed on 5 April 2024, AMP-6. -- 25 of 93 -- [2026] WASC 335 STRK J Page 26 Mr Hunt, or what part, if any, Mr Hunt played in this matter. He also complained that:22 During the conversation, Debra Edgar attempted several times to persuade [Mr Kostezky] that his reactions and attitudes were invalid, and to accept that the advice given to him by planners was 'only preliminary advice' and that as 'no plans had been submitted', the way forward was to meet with 'Chris' (Mr Leigh) and 'the planners'. … After the initial friendly, even pleasant communications with Debra Edgar as [Mr Kostezky's] advocate, it became apparent to [Mr Kostezky] that Debra Edgar's primary conduct toward him was that of a biased operative working on behalf of Mr Leigh, and/or Dale Page and 'planning', not sensitive to [Mr Kostezky's] position, but instead to protect Mr Leigh, Dale Page and 'planning', and to following their orders. Alleged abuse of public power and authority - Ms Page 45 Mr Kostezky says that on 7 February 2018 he received a letter from Dale Page, by which he says Ms Page:23 … advises [Mr Kostezky] of, and endorses an 'internal review', and is the wielder of the purported power of 'the City' behind the 'internal review' and its pronouncements, purporting to have been conducted 'with full consideration of the matters [Mr Kostezky had] raised, responses provided by the City and the impact of this matter.' 46 He further says at paragraphs 137 to 139 that: In her letter to [Mr Kostezky] dated 7 February 2018, Dale Page and her 'internal review', confirm, endorse, and amplify in its totality, the advice to [Mr Kostezky], in Mr Leigh's letter to [Mr Kostezky] of 20 November 2017 and in Mr Thornton's email of 17 August 2017 and phone call of 11 August 2017, as pleaded for above for Mr Leigh. Dale Page is equally culpable for misfeasance in public office with Mr Leigh for matters as pleaded above relating to Mr Leigh. … The letter from Dale Page and the pronouncements of her 'internal review' are a manifestation of malice and an absence of good faith on the part of Dale Page and her 'internal review' towards [Mr Kostezky]. 22 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 129, 131. 23 Indorsement of claim to the writ of summons filed on 2 August 2023, par 136. A copy of the letter is attached to the affidavit of AM Pull affirmed on 5 April 2024, AMP-8. -- 26 of 93 -- [2026] WASC 335 STRK J Page 27 47 Particulars of that allegation are set out at paragraphs 139.1 to 139.17 of the indorsement. The last particular of malice and an absence of good faith (at paragraph 139.17) was as follows: In the words: 'A development application will need to be submitted before further direction can be provided.' that do not acknowledge that it is not rational for [Mr Kostezky] to lodge an application in the face of the City's written advice, that until it is resolved or withdrawn, presents to [Mr Kostezky] a non-discretionary, definite, legal and final bar to his proposed 3 Gr Dw Development presented as being backed by the full, albeit invalid, power of the City of Joondalup. 48 Mr Kostezky says that the letter dated 7 February 2018, with (among other things) its advice and the pronouncements of her 'internal review', amount to a knowing conscious abuse by Ms Page of her public office and public power or authority, or are in reckless indifference as to the limits to or restraints upon her public power or authority.24 49 Mr Kostezky further alleged that Ms Page:25 (a) projected and exercised the purported power behind her advice and the pronouncements of the internal review in the knowledge or in reckless disregard of its invalidity and falsehood; (b) intended Mr Kostezky to rely on her advice and to submit to the pronouncements of her 'internal review'; (c) and her 'internal review' acted to intimidate, demean, denigrate and humiliate Mr Kostezky; (d) exercised the abused power behind her advice and the pronouncements of her 'internal review' as an incident of her public office; and (e) abused her power as pleaded with the intention to harm, or with the knowledge of the probability of harming Mr Kostezky, or with a conscious and reckless indifference to the probability of harming him. 50 By way of a particular to this plea, Mr Kostezky alleged that Ms Page knew or was recklessly indifferent to the fact that as a result of 24 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 140 - 141, and particulars at 141.1 - 141.10. 25 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 142 - 146. -- 27 of 93 -- [2026] WASC 335 STRK J Page 28 her abuse of her public power or authority as pleaded above, Mr Kostezky would be forced to accept that he could not realise his expected financial gain, to accept the loss of the work expended in getting the project close to proceeding with town planning and building applications, ready to commence construction, and to quietly accept the loss of the satisfaction and pleasure of his swan song project and abandon his plans for his own and his children's future.26 Further, he alleged that she intended or was recklessly indifferent to the fact that Mr Kostezky would be forced to submit to the purported power of her advice and the pronouncements of her internal review, and be forced to abandon his proposed '3 Gr Dw' development, and suffer and endure the financial, physical and psychological harm and damage due to being deprived of his right to realise lawfully his '3 Gr Dw' development.27 51 Mr Kostezky says that as a result of the misfeasance of Ms Page as pleaded, he has suffered harm and damage to be advised prior to trial. The claims against the WAPC defendants Assistance sought from the WAPC on 21 September 2017 52 On 21 September 2017 (following the telephone conversation that Mr Kostezky had had with Mr Leigh on 7 September 2017 (summarised at [27] to [29] above), Mr Kostezky telephoned the WAPC to do three things:28 (a) 'seek an authoritative rejection or confirmation of the CoJ's interpretation of "the requirements of clause 4.3.5 (i) (sic later corrected by Mr Thornton) to clause 4.3.5) of the City's District Planning Scheme No. 2 (DPS2)", the 10 metre issue'; (b) 'explore the implications of Mr Thornton's advice by email on 17 August 2017, "The City acknowledges however that it is not the decision-making body for residential subdivision, which rather lies with the Western Australian Commission". (sic)'; and (c) 'explore the option in the advice by phone by Mr Thornton on 11 August 2017, that [Mr Kostezky] "had the option to lodge an application to the WAPC for subdivision approval of the lots, to have a greater certainty of having a development on the back half of lot approved"'. 26 Indorsement of claim to the writ of summons filed on 2 August 2023, par 146.1. 27 Indorsement of claim to the writ of summons filed on 2 August 2023, par 146.2. 28 Indorsement of claim to the writ of summons filed on 2 August 2023, par 148. -- 28 of 93 -- [2026] WASC 335 STRK J Page 29 53 Mr Kostezky says that he spoke to WAPC planner Emma Hodson, who (among other things) confirmed that she was a planner appropriate to deal with the matter. Mr Kostezky says that after he explained his view as to the 10 metre issue and the proper reading of the scheme, he sought Ms Hodson to 'reassess in particular, the meaning and application of the City's reading of their Local (Development) Planning Scheme No 2 in relation to the 10-metre width at the street boundary requirement of clause 4.3.5. of the CoJ L(D)PS No 2'. He further notes that he did not mention to Ms Hodson the irregular site, guest parking, or landscaping issues, nor did he request any comment on it.29 54 Mr Kostezky says that on the same day he forwarded to Ms Hodson by email for assessment two drawings with six photos, that were identical to those that he had submitted to Mr Thornton on 4 August 2017.30 55 He says that on 29 September 2017, he received an email reply from Ms Hodson confirming the City of Joondalup planners' interpretation of the 10-metre requirement, and reproduced in his indorsement the following passage from Ms Hodson's communication:31 Under s138 o[f] the Planning and Development Act 2005 the Western Australian Planning Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme. Clause 4.3.5 of the City of Joondalup District Planning Scheme No.2 (DPS 2) provides that in areas with dual coding (i.e., R20/R40) for the higher coding to apply, development must have a minimum site width of 10m at the street boundary. After reviewing your proposal, it appears that the frontages of Lot B and Lot C do not meet this requirement and would not be capable of subdivision as it is currently proposed. 56 Mr Kostezky says that he was not aware that the requirement would extend to the two group dwelling the subject of the permit that had been issued to him in August 2011 (Permit No DA11/0652). 57 Mr Kostezky says that while his own experience and instincts lead him to the view that the City of Joondalup's position was flawed and 29 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 149 - 154. 30 Indorsement of claim to the writ of summons filed on 2 August 2023, par 156. A copy of Mr Kostezky's email and attachments are attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 2. 31 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 157, 157.1. A copy of Ms Hodson's email is attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 2. -- 29 of 93 -- [2026] WASC 335 STRK J Page 30 invalid,32 'before he could confidently turn to the Law', there remained the need for certainty in relation to Ms Hodson's confirmation of the City of Joondalup's planners' advice by her email on 29 September 2017 in relation to: (a) 'the meaning of Clauses 4.3.4 and .5 of the CoJ LPS No.2, the 10 metre issue'; and (b) 'the Decision Maker being the WAPC for the issue of separate titles for the proposed lots of his proposed 3 Gr Dw Development'. 58 In the pursuit of certainty, Mr Kostezky says that he exchanged emails in three rounds with Ms Hodson from 30 April to 28 May 2018.33 At paragraph 163 of the indorsement, Mr Kostezky reproduced part of the last of those emails. He says that by the email of 28 May 2018 Ms Hodson advised him of the following:34 '……. The design of the subdivision as supplied is unlikely to be supported by the WAPC, given that the frontage of Lot B (7.2m) and Lot C (6m) does not comply with the City of Joondalup District Planning Scheme No. 2 Clause 4.3.5 in regards to dual coded lots'. And further, 'it is a fundamental objective of the WAPC's Development Control Policy 2.2 Residential Subdivision to facilitate the supply of residential lots in regular shapes and size ranges, that reflect the statutory provisions of local planning schemes – including the R-Codes'. The irregular shape of Lot C would be not (sic) satisfy this objective", and 'a decision of the WAPC to support or not support the subdivision can only be provided if a valid application has been lodged. However, I have raised the design at a manager and director level, and both have agreed that it would be unlikely to be supported based on the above'. 'Should an application be lodged and subsequently refused, you will have the right to appeal to the State Administrative Tribunal'. 'I am unsure if there is anything else to add to this discussion but if you wish to come in for a meeting, I can organize that for you…….'. 32 Mr Kostezky made reference to 'the Council's' position, which I have taken to be a reference to the City of Joondalup. 33 A copy of the emails are attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 3, IAR 4. 34 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 163, 163.1 - 163.5. -- 30 of 93 -- [2026] WASC 335 STRK J Page 31 Confirmation of the advice of Ms Hodson by Mr Cook 59 Mr Kostezky says that in about June 2018 he telephoned Mr Cook, WAPC Planning Manager, Land Use Planning, seeking advice about 'the construction and meaning of the City of Joondalup Local (District) Planning Scheme No. 2 Clause 4.3.5. (the 10 metre issue.)'.35 60 As to that conversation, Mr Kostezky records that:36 (a) during the conversation Mr Cook advised him in relation to his proposed '3 Gr Dw' development; (b) Mr Cook confirmed his familiarity with his proposed 3 Gr Dw development and the history of prior dealings in relation to it with City of Joondalup planners and with Ms Hodson; (c) during the conversation Mr Cook knew or was recklessly indifferent to the fact that at no time was it rational or appropriate for Mr Kostezky to 'subdivide' the development site resulting in a vacant Lot C, with a lot or lots for each of the remaining two existing dwellings; (d) during the conversation Mr Cook knew or was recklessly indifferent to the fact that Mr Kostezky's proposed development was a '3 Gr Dw' development, and that the WAPC had delegated its power to the City of Joondalup for developments such as Mr Kostezky's, 'under Part 2, Division 2, section 16, (3), (e) of the Planning and Development Act 2005, and as gazetted on 9 June 2009, and widely disseminated by planning bulletins of the WAPC: Planning Bulletin No 52 in June 2009 and in Planning Bulletin No 110 in December 2013'; (e) during the conversation Mr Cook endorsed and confirmed the advice from Ms Hodson as advised in her last email to Mr Kostezky on 28 May 2018 relating to the 10 metre issue, the WAPC being the decision maker issue, and the surprising, unexpected advice relating to the irregular site issue; (f) when Mr Kostezky sought the planning justification behind the interpretation of the 10 metre issue applying to each lot of a development rather than to the development as a whole, Mr Cook refused to discuss the matter or advise Mr Kostezky 35 Indorsement of claim to the writ of summons filed on 2 August 2023, par 164. 36 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 165 - 171. -- 31 of 93 -- [2026] WASC 335 STRK J Page 32 further, and instead stated that if he wished further clarification, he must make an application to the WAPC, and if not satisfied with the result, he could take it to the SAT; and (g) when Mr Kostezky attempted to explain why it would not be rational for him to lodge an application if the 10 metre requirement was a primary non-discretionary requirement, and applied in the manner advised by the City of Joondalup, Mr Cook refused to discuss the matter further, and in a hostile and demeaning manner, terminated the conversation. Attempt made on 28 September 2018 to secure a meeting 61 On 28 September 2018 Mr Kostezky telephoned the WAPC and spoke to Rosa Rigali, Manager, Planning Administration. He says that he explained the history of this matter and the serious impact on him, and asked for help. 62 He says that Ms Rigali gave him permission to record their conversation, and that she offered to find the appropriate senior planning officer with the view to arranging a meeting. Alleged misfeasance in public office by Mr Cook 63 The basis upon which Mr Cook's conduct is said to ground the tort of misfeasance in public office is set out at paragraphs 175 to 186. Mr Kostezky says that on 1 October 2018 he received an email from Mr Cook, which he understood was 'a negation of the meeting to have been arranged by Rosa Rigali'; and which was also a further endorsement and confirmation by Mr Cook of Ms Hodson's advice in her email of 28 May 2018.37 64 By the use of his public power or authority to confirm and endorse the advice of Ms Hodson to Mr Kostezky in her email of 28 May 2018, Mr Kostezky says that 'Mr Cook is culpable for the consequences of the advice.' Further, he says that the 'confirmation and endorsement by Mr Cook of the advice of Emma Hodson to [Mr Kostezky] in her email of 28 May 2018 amounts to an abuse of Mr Cook's public power or authority'. 65 As to the same, Mr Kostezky says that Mr Cook knew he was abusing his public power or authority, or was recklessly indifferent as 37 A copy of the email is attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 5. -- 32 of 93 -- [2026] WASC 335 STRK J Page 33 to the limits or restraints upon his power or authority. The particulars of knowledge, alternatively reckless indifference, were as follows:38 180.1 Contrary to the advice to [Mr Kostezky], that the WAPC was the decision making body in relation to [Mr Kostezky's] proposed 3 Gr Dw development, the WAPC, as part of a major reform, delegated its powers in relation to developments such as [Mr Kostezky's] to the City of Joondalup under Division 2 section 16 (3)e of the Planning and Development Act 2005, and as gazetted on 9 June 2009 and widely disseminated by Planning Bulletins of the WAPC Planning Bulletin No 92 in 2009 and in Planning Bulletin No 110 in December 2013. 180.2. In relation to all the advice, (Emma Hodson email 28 May 2018), Mr Cook knew or was recklessly indifferent to the fact that the advice, in addition to being invalid due to the delegation to the CoJ, did also echo, endorse, confirm, and amplify the invalid advice to [Mr Kostezky] by planners of the CoJ, Mr Leigh and Dale Page, that had and still was contributing to [Mr Kostezky] being forced to stop his 3 Gr Dw Development. 180.3. Contrary to the advice in relation to: '……. The design of the subdivision as supplied is unlikely to be supported by the WAPC, given that the frontage of Lot B (7.2m) and Lot C (6m) does not comply with the City of Joondalup District Planning Scheme No. 2 Clause 4.3.5 in regards to dual coded lots', Mr Cook knew or was recklessly indifferent to the fact that the 3 Gr Dw development did comply 'with the City of Joondalup District Planning Scheme No. 2 Clause 4.3.5 in regard to dual coded lots'. 180.3.1. From the direct reading and meaning of the words of 'the City of Joondalup District (Local) Planning Scheme No. 2, Clause 4.3.5 in relation to to [sic] dual coded lots' (the 10 metre requirement issue) 180.3.2. From the history leading up to the gazetting of Amendment No 73 of the CoJ's L(D)PS No 2, which included the 10 metre requirement. 180.3.2.1. Prior to gazetting of the valid version, the WAPC rejected versions of it that would have had, precisely the invalid meaning and effect presented to [Mr Kostezky], contrary to the valid gazetted version. 38 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 180.1 - 180.4.3. -- 33 of 93 -- [2026] WASC 335 STRK J Page 34 180.4. Contrary to the advice in relation to: 'Should an application be lodged and subsequently refused, you will have the right to appeal to the State Administrative Tribunal', Mr Cook knew or was recklessly indifferent to the fact that it was not rational, appropriate, and/or possible for [Mr Kostezky] to proceed to an application to the WAPC or appeal to the SAT: 180.4.1. Because [Mr Kostezky's] 3 Gr development did not fall under the discretion of the WAPC. 180.4.2. while Mr Cook exercised the purported power of the WAPC to confirm and project the validity of the CoJ's invalid interpretation and application of the inserted non-discretionary clauses 4.3.4 and 4.3.5 into the R-Codes of its L(D)PS No 2. 180.4.3. Because the SAT had/has no jurisdiction over the 10 metre non-discretionary issue. 66 Further, Mr Kostezky says that the confirmation and endorsement of the advice of Ms Hodson as pleaded was an exercise of power that was an incident of Mr Cook's office; that Mr Cook intended Mr Kostezky to rely on his advice; that Mr Cook abused his public power and authority with the intention of harming Mr Kostezky or with the knowledge of the probability of harming him, or with a conscious and reckless indifference to the probability of harming him; that Mr Cook knew or was recklessly indifferent to the fact that the confirmation and endorsement of the advice supported the invalid position of the City of Joondalup planners Mr Leigh and Ms Page; that Mr Cook knew or was recklessly indifferent to the fact that the advice would damage and harm Mr Kostezky; and Mr Cook's misfeasant abuse of his public power or authority caused hurt and damage to Mr Kostezky. 67 As to the 10 metre issue, Mr Kostezky further says that he felt that he had no choice but to accept the final position of the WAPC as it was confirmed by the public power or authority of Mr Cook.39 Alleged misfeasance in public office by Mr Ellenbroek 68 As to what Mr Kostezky described as the 'irregular site issue', at paragraph 189 Mr Kostezky observed that Ms Hodson in her email of 28 May 2018 referred to 'WAPC's Development Control Policy 2.2 Residential Subdivision', and he noted that she had cited the 'final revised ungazetted DCP 2.2 October 2017' version of that policy. 39 Indorsement of claim to the writ of summons filed on 2 August 2023, par 187. -- 34 of 93 -- [2026] WASC 335 STRK J Page 35 69 At paragraphs 187 to 196, Mr Kostezky described what he had come to understand was the 'mutation' of WAPC's operational policy concerning residential subdivision, which he described as 'DCP 2.2'. As to the policy, Mr Kostezky at paragraph 196 noted as follows: The final published DCP 2.2 October 2017 after advertising, saw a further mutation of the appropriate proscriptive original 'a wide range of shapes…' to the irrational prescriptive purported mandatory form 'regular shapes…..' cited by Emma Hodson as 'a fundamental objective' of the Policy supported by WAPC planning officers 'at manager and director level', and confirmed by Mr Ellenbroek as pleaded below. … 70 Mr Kostezky says that on 1 November 2018, in pursuit of the answer to the puzzle of how the mutation had occurred, he telephoned the WAPC and spoke to Mr Ellenbroek (Principal Planning Manager, Land Use Planning) for over 50 minutes. 71 From paragraphs 200 to 207 Mr Kostezky described his conversation with Mr Ellenbroek, recording (among other things) that he had explained to Mr Ellenbroek that his view was at odds with the advice he had received from Ms Hodson; that he requested that Mr Ellenbroek reconsider that advice and Mr Kostezky gave his reasons in support of reconsideration; that during the conversation Mr Ellenbroek had advised Mr Kostezky that Mr Kostezky's cited reasons (outlined in the indorsement) were not relevant to the application of the policy; and that during the conversation Mr Ellenbroek had 'confirmed and endorsed the interpretation of DCP 2.2 by Emma Hodson, as confirmed by WAPC planning officers "at manager and director level", in relation to the "fundamental objective" to facilitate the supply of residential lots in "regular shapes" of the Development Control Policy 2.2 of October 2017'.40 72 Mr Kostezky says that: (a) the confirmation and endorsement by Mr Ellenbroek of the advice of Ms Hodson to Mr Kostezky in her email of 28 May 2018; (b) 'the advice by Mr Ellenbroek to [Mr Kostezky] that the reasons advanced by [Mr Kostezky] for Mr Ellenbroek's reconsideration were not relevant to the of the compliance of [Mr Kostezky's] 3 Gr Dw development with DCP 2.2'; and 40 Mr Kostezky's emphasis. -- 35 of 93 -- [2026] WASC 335 STRK J Page 36 (c) the matters further particularised at paragraph 212 of the indorsement, amounted to an abuse by Mr Ellenbroek of his public power or authority. Further, Mr Kostezky says that Mr Ellenbroek knew that he was abusing his public power or authority, or was recklessly indifferent as to the limits or restraints upon his public power or authority. 73 The particulars of knowledge, alternatively reckless indifference, were expressed by Mr Kostezky as follows: 212.1. Mr Ellenbroek knew or was recklessly indifferent to the fact that the WAPC had delegated its power to the City of Joondalup for developments such as [Mr Kostezky's], under Part 2, Division 2, section 16, (3), (e) of the Planning and Development Act 2005, and as gazetted on 9 June 2009, and widely disseminated by Planning Bulletins of the WAPC: Planning Bulletin No 52 in June 2009 and in Planning Bulletin No 110 in December 2013. 212.2. Mr Ellenbroek knew or was recklessly indifferent to the fact that [Mr Kostezky's] proposed 3 Gr Dw development was subject to the delegation. 212.3. Mr Ellenbroek knew or was recklessly indifferent to the fact that contrary to his advice, the reasons cited by [Mr Kostezky] for reconsidering his confirmation and support of Emma Hodson in relation to the 'fundamental objective' for regular lot shapes were relevant to the use of the discretionary power of the relevant decision maker. 212.4. Mr Ellenbroek knew or was recklessly indifferent to the fact that the cited relevant version of the DCP 2.2 October 2017 had no nexus to [Mr Kostezky's] proposed development. 212.5. Mr Ellenbroek knew that the operationally DCP 2.2 was limited to R10 to R30 zoned land, and did not relate to R40 zoned land on which [Mr Kostezky's] 3Gr Dw development was proposed. 212.6. Mr Ellenbroek knew or was recklessly indifferent to the fact that the cited relevant version of the DCP 2.2 October 2017 was not based on any rational or valid planning principle. 212.7. Mr Ellenbroek knew or was recklessly indifferent to the fact that the advice also echoed the intent and damaging consequences to [Mr Kostezky] of the advice by Mr Leigh and Dale Page of the CoJ, that was contributing to [Mr Kostezky] having to stop his proposed 3 Gr Dw development. -- 36 of 93 -- [2026] WASC 335 STRK J Page 37 74 Further to the alleged misfeasance, Mr Kostezky says that the advice from Mr Ellenbroek was an incident of his public office or authority; that the confirmation and endorsement of the advice of Ms Hodson as pleaded was an exercise of public power or authority that was an incident of Mr Ellenbroek's office; that Mr Ellenbroek intended Mr Kostezky to rely on his advice; that Mr Ellenbroek abused his public power and authority with the intention of harming Mr Kostezky, or with a conscious and reckless indifference to the probability of harming Mr Kostezky; and that Mr Ellenbroek's misfeasant abuse of his public power or authority caused hurt and damage to Mr Kostezky. Further communications sent by Mr Kostezky 75 Mr Kostezky says that he then proceeded to prepare letters addressed to Lisa Powell (of the Office of Planning Minister Saffioti), Ms Rigali, Mr Cook and Mr Ellenbroek. 76 At paragraph 219 of the indorsement Mr Kostezky recorded that the letters were an attempt by him to put his position to the WAPC with supporting reasons and argument for consideration, and to put the WAPC on notice that, without resolution, he had no option but to take legal action to seek damages for the denial of his right to lawfully develop the Property. 77 I understood from the indorsement that the letters were not immediately issued in the circumstances described by Mr Kostezky at paragraphs 220 to 222: Nearing completion of the letters, during February 2019, [Mr Kostezky] became aware of the fact that all the defendants knew, or were recklessly indifferent to the fact that from the beginning, the WAPC was not the decision maker since 9 June 2009, after the WAPC, as part of a major reform, delegated it's power to Local Governments, including the City of Joondalup, for developments such as [Mr Kostezky's], under s16(3)(e) of the Planning and Development Act 2005, and as gazetted on 9 June 2009 and widely disseminated by Planning Bulletins of the WAPC Planning Bulletin No 92 in 2009 and in Planning Bulletin No 110 in December 2013. Until the discovery of the delegation, because of his unfamiliarity with the complexities of the Western Australian Planning Framework, [Mr Kostezky] had relied and acted on the advice of the CoJ planners, that the WAPC was the ultimate decision maker for release of titles for the individual lots of his proposed 3 Gr Dw development. -- 37 of 93 -- [2026] WASC 335 STRK J Page 38 particulars The advice had come from CoJ planner Mr Thornton on 17 August 2017 and confirmed by Mr Leigh and Dale Page and the 'internal review', and further, on 21 and 29 September 2017, from WAPC planner Emma Hodson supported 'at manager and director level', and later confirmed as pleaded above by Mr Cook, Planning Manager Land use Planning, and Mr Ellenbroek, Principal Planning Manager, Land Use Planning. The discovery during February 2019 that the advice from the CoJ planners, that the WAPC was the decision maker, was untrue and invalid, altered considerably [Mr Kostezky's] understanding of the conduct of all the defendants, requiring a time consuming stressful review of the details of [Mr Kostezky's] dealings with the CoJ and WAPC. 78 Mr Kostezky says that on 2 April 2019, having updated them, he sent letters to Mr Cook, Mr Ellenbroek, Ms Powell and Ms Rigali (and a copy of all letters to each of them).41 He noted that all letters except the letter to Ms Rigali were returned unopened. 79 Mr Kostezky recorded that in the letter sent to Mr Cook, he had requested a meeting with the WAPC, and answers to a number of questions prior to such a meeting. The request for answers included a request for the justification based on planning principles for certain previously advised requirements.42 Alleged misfeasance in public office by Ms McGowan 80 Mr Kostezky says that on 23 April 2019 he received a letter from Ms McGowan, the Director General of the Department of Planning, Lands and Heritage, which purports to be a response to the four letters sent by Mr Kostezky on 2 April 2019.43 81 Mr Kostezky alleges at paragraphs 228 and 229 of the indorsement that Ms McGowan 'knew or was recklessly indifferent to the fact that as a reply to the 4 letters, the letter was an in bad faith, self-serving, unconscionable, invalid, deceptive, oppressive, abusive, and damaging non-reply slap in the face, demeaning and denigrating, putting the plaintiff in his place'; and that the letter amounts to a conscious abuse 41 A copy of the correspondence is attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 6. 42 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 226, 226.1 - 226.7. Affidavit of IA Repper affirmed on 5 April 2024, IAR 6, pages 47 - 48. 43 A copy of the letter is attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 7. -- 38 of 93 -- [2026] WASC 335 STRK J Page 39 of her public power or authority, or is in reckless indifference as to the limits to or restraints upon her public power or authority. 82 The particulars of knowledge, alternatively reckless indifference, were expressed by Mr Kostezky as follows: particulars 229.1. Gail McGowan knew or was recklessly indifferent to the fact that her letter has little if any valid relationship to the circumstances, issues, allegations, or questions put to Mr Cooke or Mr Ellenbroek in the 4 letters of 2 April 2019, except for the reference to the letters in the first sentence. 229.2. Gail McGowan knew or was recklessly indifferent to the fact that her letter has an aura of an invalid prescriptive finality and projection of her public power and authority that leaves no room for reply or questioning. 229.3. Gail McGowan knew or was recklessly indifferent to the fact that the letter implies total vindication of the WAPC and its officers, and is as totally critical of [Mr Kostezky], chiding him for his ignorance and incompetence, yet generous enough not to 'formally' judge him as being vexatious. 229.4. Gail McGowan knew or was recklessly indifferent to the fact that her letter is an invalid denial to [Mr Kostezky] of due answers to the direct valid questions under Part 2, Division 2, section 14 (d) of the PDA, put to Mr Cook and the WAPC in the letter to Mr Cook at paragraph 100 and its subparagraphs. 229.5. Gail McGowan knew or was recklessly indifferent to the fact that her advice to [Mr Kostezky] in her letter to [Mr Kostezky]: 'The pre-lodgement assistance provided by the Department, in advance of a formal planning application being made to the Western Australian Planning Commission (WAPC), is informal and undertaken at an officer level.['] was untrue and not relevant to the issues. 229.6. Gail McGowan knew or was recklessly indifferent to the fact that her advice to [Mr Kostezky] in her letter: 'This assistance does not involve or necessitate a detailed assessment of the proposed planning application. Therefore, at this stage, only a preliminary opinion can be provided as to whether the proposed application is likely to comply with the relevant planning framework.' was untrue and not relevant to the issues. 229.7. Gail McGowan knew or was recklessly indifferent to the fact that her advice to [Mr Kostezky]: 'When providing pre-lodgement assistance, officers are unable to provide any -- 39 of 93 -- [2026] WASC 335 STRK J Page 40 confirmation or assurances as to how a formal planning application will be assessed or ultimately determined by the WAPC'. was untrue and not relevant to the issues. 229.8. Gail McGowan knew or was recklessly indifferent to the fact that her advice to [Mr Kostezky] in her letter: 'Further, officers are unable to provide advice as to the legal interpretation of any local planning scheme provisions. You will need to seek your own independent legal advice in that regard' was untrue and not relevant to the issues. 229.9. Gail McGowan knew or was recklessly indifferent to the fact that her advice to [Mr Kostezky] in her letter: 'The Department has sought to assist you to the extent possible without a formal application for approval being made based on the information that you provided and the Department's understanding of your proposal. Until the WAPC receives a formal application from you, the Department is unable to provide any further advice to you on your proposal other than that already provided.' was untrue and not relevant to the issues 229.10. Gail McGowan knew or was recklessly indifferent to the fact that her advice to [Mr Kostezky] in her letter: 'It appears from your correspondence that it is your intent to firstly construct an additional dwelling on your property and subsequently seek to undertake a strata subdivision. If this is the case, and it is not proposed that a vacant strata lot will be created, then the appropriate avenue for progressing your proposal would be to lodge formal applications for development approval and strata subdivision approval with the local government.' was a chiding, improper projection of the power of her public office, dealing with matters obviously well understood by, and familiar to [Mr Kostezky], that were also well understood by Mr Cook and Mr Ellenbroek, and that are central to this action and articulated in [Mr Kostezky's] letters to Mr Cook and Mr Ellenbroek of 2 April 2019. 83 By a letter dated 17 July 2019 Mr Kostezky responded to Ms McGowan's letter, recording that he 'did not hold back his criticism of the Director General's non-response to the 4 letters pleading his situation, and to the lack of answers to the direct questions asked', and further recording that he again requested a meeting to define, narrow or eliminate the issues in dispute between the parties.44 84 On 14 August 2019, in reply to his letter to Ms McGowan, Mr Kostezky says that Vaughan Davies as an Acting Director General 44 A copy of the correspondence is attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 8. -- 40 of 93 -- [2026] WASC 335 STRK J Page 41 of the Department of Planning, Lands and Heritage wrote to him and noted that the Department was considering the information provided.45 85 Mr Kostezky says that before he heard further from Ms McGowan, he gained further information concerning the City of Joondalup Local (Development) Planning Scheme No 2, and the 10 metre issue, when 'he discovers the process and interaction between the City of Joondalup and the WAPC, in the gazetting of Amendment No 73 to the CoJ Local Planning Scheme No 2 on 12 February 2016'.46 At paragraphs 235 to 237 Mr Kostezky records that as a result of his discovery: 235. It becomes clear to [Mr Kostezky] that from the beginning all the defendants knew or were recklessly indifferent to the fact that the requirements of clause 4.3.4/5 of the CoJ L(D) PS No 2 (the 10 metre issue), applied to the development site of his proposed 3 Gr Dw development site rather than to each resulting lot of the development contrary to the advice to [Mr Kostezky] from Mr Leigh, Dale Page, Mr Cook and Gail McGowan, and as a result they also knew or were recklessly indifferent to the fact that 235.1. Clause 4.3.4/5 of the CoJ L(D) PS No 2 (the 10 metre issue), gives no power, authority, or discretion to the CoJ, the WAPC or the DoPL&H to prevent [Mr Kostezky's] 3 Gr Dw development. 236. It also becomes clear to [Mr Kostezky that from the beginning all the defendants knew or were recklessly indifferent to the fact that the requirement was not discretionary and could not be overruled by planning Policy, or by an appeal to the SAT. 237. It also becomes clear to [Mr Kostezky] that from the beginning, all the defendants knew or were recklessly indifferent to the fact that unless their advice was withdrawn, [Mr Kostezky] would be forced to stop, and indeed was forced to stop the development, and to suffer the consequent harm and damage. 86 Mr Kostezky says that by letter dated 22 April 2020, he informed Mr Davies of his discovery in relation to the 10 metre issue, and the possible impact it may have on the 'considering' by the Department of Planning, Lands and Heritage, and in the same letter gave a detailed 45 A copy of the correspondence is attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 9. 46 Indorsement of claim to the writ of summons filed on 2 August 2023, par 234. -- 41 of 93 -- [2026] WASC 335 STRK J Page 42 account of and reasons for his understanding of the significance of his discovery in relation to matters relating to this action.47 87 Mr Kostezky says that on 31 July 2020 he received a written response from Ms McGowan, which communication he described as being 'a distressing, humiliating, demeaning, non-reply slap in the face, putting the plaintiff in his place'.48 He further alleges that the advice in that letter 'amounts to an in bad faith conscious abuse of her public power or authority, or is an in bad faith reckless indifference as to the limits to or restraints upon her public power or authority'.49 The particulars of that bad faith and reckless indifference were expressed by Mr Kostezky as follows:50 particulars 242.1. Gail McGowan's last letter does not reveal any relevant or proper response to the letter by [Mr Kostezky] to Acting Director General Mr Davies of 22 April 2020, about the 10metre issue revelation, except for the citing of it. 242.2. In the opening paragraph of the letter Gail McGowan links the referral to the CCC to the letter dated 22 April 2020 by [Mr Kostezky] to Mr Davies, as well as to the letter dated 14 August 2019 from Mr Davis to [Mr Kostezky], 'considering the information you have provided'. 242.2.1. Deceptively, contrary to Gail McGowan's advice, the two letters are not related in the significant way to the referral to the CCC as implied by Gail McGowan in her letter. 242.3. Gail McGowan deceptively fails to inform [Mr Kostezky] of the date, the context, the details, or the extent of the conclusions of the CCC. 242.4. Gail McGowan deceptively links the conclusion of the CCC, to [Mr Kostezky's] 'claims pertaining to the conduct of State Government employees, including officers of the Department', in the knowledge of or in reckless disregard of the fact that there is no rational or valid connection. 47 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 238 - 239. A copy of the correspondence is attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 10. 48 Indorsement of claim to the writ of summons filed on 2 August 2023, par 241. A copy of the correspondence is attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 11. 49 Indorsement of claim to the writ of summons filed on 2 August 2023, par 242. 50 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 242.1 - 242.9. -- 42 of 93 -- [2026] WASC 335 STRK J Page 43 242.5. Contrary to the implication of Gail McGowans last letter, that the words 'the CCC concluded there was no cause for investigation and closed its file', rather than being a judgement in favour of Gail McGowan's assertions that the WAPC et al. 'at all times, conducted themselves with integrity, professionalism and in full accordance with the law', leave unanswered and unresolved issues presented by [Mr Kostezky] to the WAPC et al.: 242.5.1. in his 4 letters to Mr Cook et al. of 2 April 2019, and 242.5.2. in his letter to Gail McGowan of 17 July 2019, and 242.5.3. in his letter to Mr Davies of 22 April 2020 242.6. Gail McGowan intends [Mr Kostezky] to rely on her version of the CCC's conclusions as being a final and unassailable defence against [Mr Kostezky's] position, and an exoneration of Gail McGowan, the DoPL&H, the WAPC, Mr Cook and Mr Ellenbroek, and even the CoJ defendants. 242.6.1. and to submit to not only her public power or authority, but also to that of the more onerous one of the CCC and to the CCC's final impregnable judgement of [Mr Kostezky's] implied wrongful, even vexatious conduct, and 242.6.2. to accept that 'The Western Australian Planning Commission, its members and the staff and officers of the Department which support it have, at all times, conducted themselves with integrity, professionalism and in full accordance with the law.', adding as a mark of her own public power and authority: 'Any inference to the contrary is not accepted'. 242.7. To further focus [Mr Kostezky's] attention on the CCC's considerations being final and unassailable, Gail McGowan quotes an absolute immunity from any potential action by [Mr Kostezky]: 'I further advise that section 267 of the Planning and Development Act 2005 provides protection against personal liability for officers of the Department', deceptively leaving out that the protection is valid only for anything that the person has done, on condition that it was done in good faith. 242.8. Gail McGowan knew or was in advertent reckless disregard of the fact that the words: 'that officers of the Department have corresponded with you on numerous occasions regarding your proposal', are untrue, intimidate [Mr Kostezky], and invalidly -- 43 of 93 -- [2026] WASC 335 STRK J Page 44 and unfairly chastise [Mr Kostezky], and can be understood as a justification for the lack of response to the 4 letters of 2 April 2019 to Cook et al., and the harsh treatment of [Mr Kostezky]. 242.9. Gail McGowan knew or was in advertent reckless disregard of the fact that the words: 'There is now nothing further the Department can assist you with', unfairly and without cause deprive [Mr Kostezky] of the advice available to him from the WAPC under Part 2, Division 2 section 14(d) of the PDA 2005, which should have settled one way or the other [Mr Kostezky's] position in relation to: the 10 metre issue, and the irregular shape issue, and the WAPC's jurisdiction over [Mr Kostezky's] 3 Gr Dw development, issue, and which might have removed the relevant purported bars to his proposed 3 Gr Dw development. 88 Mr Kostezky alleges that in writing the letter Ms McGowan intended her letter and her abuse of her public power or authority to harm him, or did so with the knowledge of the probability of harming him, or did so with a conscious and reckless indifference to the probability of harming him.51 89 Mr Kostezky further alleges that the letter and the advice to him in Ms McGowan's letter is a function of her public office; that the letter and the advice to him in Ms McGowan's letter caused hurt and damage to him; and by the matters pleaded, Ms McGowan subjected him to misfeasance in public office and caused harm and damage to him.52 Freedom of information request made to the Department of Planning, Lands and Heritage 90 Mr Kostezky records in the indorsement that in pursuit of his need to understand the referral to the Corruption and Crime Commission (CCC) and its conclusions as advised by Ms McGowan in her last letter, under the Freedom of Information Act 1992 (WA), on 10 September 2020 he requested the Department of Planning, Lands and Heritage to provide documents relating to the referral, and that he received the results of the same on 6 November 2020. 51 Indorsement of claim to the writ of summons filed on 2 August 2023, par 243. 52 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 244 - 246. -- 44 of 93 -- [2026] WASC 335 STRK J Page 45 91 He records that he discovered that on 19 August 2019 (three working days after Mr Davies' letter to him), Mr Davies had made a referral to the CCC, purporting to 'comply with the Department's obligation to report possible misconduct as per the requirements with the Corruption and Crime Commission Act 2003, section 28' in relation to this matter.53 92 The referral to the CCC grounds a further complaint by Mr Kostezky as against Ms McGowan. Mr Kostezky says that the results of the request made under the Freedom of Information Act reveal that in addition to Ms McGowan's last letter and its advice, the referral to the CCC itself and the denial to its conclusions to him amount to additional conscious in bad faith abuse of her public power or authority, or were in reckless indifference as to the limits to or restraints upon her public power or authority. The particulars of that bad faith abuse of public power or reckless indifference are set out at paragraphs 251.1 to 251.13.1, and paragraphs 252 to 253. 93 Mr Kostezky pleads that Ms McGowan knew that the referral to the CCC and the denial of access to the results of the conclusions of the CCC to Mr Kostesky was an abuse of her public power or authority or was in reckless indifference as to the limits or restraints upon her public power or authority; and that she intended that the referral to the CCC and the denial of access to the results of the conclusions of the CCC to him would harm him, or she knew that there was a probability that it would harm him, or she was consciously and recklessly indifferent to the probability that it would harm him. Further, he pleads that Ms McGowan knew or was recklessly indifferent to the fact that the CCC referral was an unconscionable deception and abuse of process, intended to deceive and harm Mr Kostezky, or did so with the knowledge of the probability of harming him, or did so with a conscious and reckless indifference to the probability of harming him. 94 At paragraph 257 Mr Kostezky alleges that as a consequence of the misfeasance, by the abuse of Ms McGowan's public power or authority as pleaded, Mr Kostezky has suffered harm and damage. 53 Indorsement of claim to the writ of summons filed on 2 August 2023, par 249. A copy of the correspondence sent by Mr Davies on 19 August 2019 is attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 12. -- 45 of 93 -- [2026] WASC 335 STRK J Page 46 Damages 95 Mr Kostezky claims that he has suffered loss and damage by reason of the matters pleaded, and his claim for damages as pleaded is reproduced at sch B to these reasons. The applications The application of the CoJ defendants 96 The first of the applications is that which is pressed on behalf of the CoJ defendants. They apply for summary judgment against Mr Kostezky in their favour pursuant to O 16 r 1(1)(a) of the Rules of the Supreme Court 1971 (WA); alternatively, in the exercise of the court's inherent jurisdiction, for an order summarily dismissing the action against the CoJ defendants as frivolous and vexatious on the ground that it is so obviously untenable that it cannot possibly succeed; alternatively, for an order that paragraphs 3, 4, 6 - 8, 29 - 147 of the indorsement to the writ be struck out pursuant to O 20 r 19(1)(a), (b) and (d) of the Rules of the Supreme Court on the grounds that the pleadings disclose no reasonable cause of action, are frivolous and/or vexatious, and/or that they are otherwise an abuse of the process of the court, and that Mr Kostezky's actions against the CoJ defendants be dismissed. 97 In support of the application pressed on behalf of the CoJ defendants, counsel read the affidavits affirmed by Alicia May Pull on 5 April 2024 and on 25 July 2024. 98 Ms Pull deposed to being a solicitor employed by DLA Piper (who at the time was the firm of solicitors for the CoJ defendants). She attached to her first affidavit eight documents marked 'AMP-1' to 'AMP-8', and deposed to the basis for her belief that the documents were true copies of various documents referred to or described by Mr Kostezky in his writ. 99 As to her second affidavit, among other things, Ms Pull described the circumstances in which orders were made by the consent of the parties on 29 November 2023 and 21 February 2024, and deposed to the filing and service of the CoJ defendants' application. She attached 14 documents to her second affidavit marked 'AMP 1' to 'AMP 14', which included various email communications sent to Mr Kostezky and a copy of the transcript of hearing on 11 June 2024. -- 46 of 93 -- [2026] WASC 335 STRK J Page 47 100 Counsel for the CoJ defendants also relied upon the written outline of submissions filed on 17 May 2024 in support of the application pressed on behalf of the CoJ defendants, and the written outline of submissions filed on 25 July 2024 (which were filed in reply to the submissions that were filed by Mr Kostezky on 5 July 2024 in opposition to the application pressed on behalf of the CoJ defendants). 101 The position of the CoJ defendants was outlined in the written outline of submissions filed in advance of the hearing, and developed in the course of the hearing. The CoJ defendants say that in essence, Mr Kostezky's claims against them are as follows:54 (a) Mr Leigh as the then manager of the City of Joondalup's planning department committed the tort of misfeasance in public office in giving advice to Mr Kostezky; (b) Ms Page committed the tort of misfeasance in public office in giving advice to Mr Kostezky; and (c) the City of Joondalup is vicariously liable for the actions of Mr Leigh and Ms Page. 102 The primary argument raised on behalf of the CoJ defendants is that Mr Kostezky's claims against Mr Leigh and Ms Page, for which the City of Joondalup is said to be vicariously liable, are flawed because the impugned acts are not capable of being characterised as a de facto exercise of power incidental to each defendant's public office (nor are the acts capable of being characterised as an exercise of public power). 103 They say that, in essence, all that Mr Leigh and Ms Page are alleged to have done is to advise Mr Kostezky what position the City of Joondalup's planning department would take if he were to submit his proposed development plans for approval, with which position Mr Kostezky disagreed, and that, in those circumstances, Mr Kostezky should proceed to make his application for approval so as to obtain a formal decision. 104 They submit that the allegation that the advice to the effect that the City of Joondalup's officers would not support Mr Kostezky's development application prevented him from progressing his development application is obviously untenable. They say that, as Mr Kostezky was advised, the proper course was for him to submit to 54 CoJ defendants' outline of submissions filed on 17 May 2024, par 11. -- 47 of 93 -- [2026] WASC 335 STRK J Page 48 the City of Joondalup an application for development approval, and that there was no impediment to him doing so. Then if that application had been rejected by the City of Joondalup, it would have been open for Mr Kostezky to seek review of that decision by the SAT. They maintain that Mr Kostezky has not, at any time, been deprived of any right or power to make an application for development approval. 105 Further, it is noted that the advice given by Mr Leigh and Ms Page was necessarily hypothetical. No application had been, or ever was, submitted for planning approval. The giving of that advice was not an actual nor de facto exercise of power. It could not be until an application for development approval was submitted by him that there could be any exercise of actual or de facto power by the City of Joondalup or its officers.55 106 As was emphasised by counsel, this is not a case where representations had been made by planners to the council that the application should be refused. Nor was this a case where it could be said that public officers, cloaked in their public office, had used their authority to do something with the intention of harming Mr Kostezky. There had been no call for the exercise of either actual or de facto public power.56 107 Alternative to the above, if it was found that it was arguable that the giving of the impugned advice by Mr Leigh and Ms Dale constituted an exercise of public power, or of de facto power incidental to the offices held by each of them, then: (a) when regard is had to the communications impugned by Mr Kostezky, the allegations that Mr Leigh and Ms Dale were actuated by malice and did not act in good faith are so obviously untenable that they cannot possibly succeed; and (b) the premise that the giving of the advice was an exercise of (actual or de facto) power is fatal to the contentions that Mr Leigh and Ms Dale acted without power and with knowledge that they lacked power or were recklessly indifferent to the absence of power. 108 Further to the submission reproduced at [107(b)] above, it was submitted that once the allegations of malice and lack of good faith are 55 CoJ defendants' outline of submissions filed on 17 May 2024, par 18, referring to Hove v The University of Western Australia [2024] WASCA 37 [68]. 56 ts 78 (10 October 2024). -- 48 of 93 -- [2026] WASC 335 STRK J Page 49 dispensed with as untenable, Mr Leigh and Ms Dale are immune from liability in tort pursuant to the Planning and Development Act 2005 (WA) s 267(1)(a). 109 Given the above, the CoJ defendants say that Mr Kostezky's claims against the CoJ defendants are frivolous and vexatious because they are so obviously untenable that they cannot possibly succeed. The application of the WAPC defendants 110 The second of the applications is that which is pressed on behalf of the WAPC defendants. They also apply for summary judgment to be entered in their favour pursuant to O 16 r 1(1)(a) of the Rules of the Supreme Court, and for the action as against each of the WAPC defendants to be dismissed, on the grounds that the action is frivolous or vexatious, and should be disposed of summarily. Alternatively, they apply for an order that paragraphs 1 - 5, 9, 27, and 148 - 258 of the indorsement of the writ be struck out pursuant to O 20 r 19(1) of the Rules of the Supreme Court without leave to replead, and the action as against each of the WAPC defendants be dismissed on the grounds that those paragraphs disclose no reasonable cause of action; are scandalous, frivolous and/or vexatious; would prejudice, embarrass or delay the fair trial of the action because they would require the WAPC defendants to traverse claims that cannot conceivably give rise to the cause of action; and/or are an abuse of the process of the court. 111 In support of the application pressed on behalf of the WAPC defendants the affidavit of Ian Alexander Repper affirmed on 5 April 2024 and filed on 25 July 2024 was read.57 (As was explained by counsel, when the affidavit affirmed on 5 April 2024 was filed on the same day on the court's electronic case management system,58 there was a minor compilation error that was corrected when the affidavit was refiled on 25 July 2024. The affidavit refiled on 25 July 2024 is a true and correct reproduction of that which was affirmed on 5 April 2024.59) Counsel also read the second affidavit affirmed by Mr Repper on 25 July 2024.60 112 Mr Repper attached to his first affidavit nineteen documents marked 'IAR 1' to 'IAR 19'. As to the first twelve documents attached to his affidavit, Mr Repper deposed to the basis for his belief that they are 57 Folio 40 of the court record. 58 Folio 23 of the court record. 59 ts 22 (10 October 2024); second affidavit of IA Repper affirmed on 25 June 2024, pars 4 - 6. 60 Folio 41 of the court record. -- 49 of 93 -- [2026] WASC 335 STRK J Page 50 true copies of various correspondence referred to or described by Mr Kostezky in his writ. He also attached a copy of page 394 of the Government Gazette dated 12 February 2016 (being the notice by which Amendment 73 to the City of Joondalup's District Planning Scheme No 2 was published); an unofficial consolidated version of the City of Joondalup's District Planning Scheme No 2 updated so as to include Amendment 87 gazetted on 12 January 2018; a copy of the special Government Gazette dated 23 October 2018 (gazetting the City of Joondalup's Local Planning Scheme No 3); a copy of the consolidated version of the R-Codes dated 23 October 2015; a copy of pages 932 to 933 of the Government Gazette dated 16 March 2018 (being the amendments to R-Codes); a copy of the Development Control Policy 2.2 - Residential Subdivision dated October 2017; and a copy of the Government Gazette dated 9 June 2009. 113 In his second affidavit, Mr Repper attached five documents marked 'IAR 20' to 'IAR 24'. It was made in response to the procedural issues raised by Mr Kostezky.61 Mr Repper attached to that affidavit copies of various email communications pertaining to conferral and to the circumstances in which orders were made by the consent of the parties on 29 November 2023 and 21 February 2024, respectively. 114 Counsel for the WAPC defendants also relied upon the written outline of submissions filed on 17 May 2024 in support of the application pressed on behalf of the WAPC defendants, and the written outline of submissions filed on 25 July 2024 (which were filed in reply to the submissions that were filed by Mr Kostezky on 5 July 2024 in opposition to the application pressed on behalf of the WAPC defendants). 115 The position of the WAPC defendants was set out in the written outline of submissions filed in advance of the hearing, and developed in the course of the hearing. 116 The WAPC defendants note that the conduct alleged to constitute misfeasance is said to have occurred in interactions between Mr Kostezky and various individuals employed in the Department of Planning, Lands and Heritage, between September 2017 and November 2020; that the Department of Planning, Lands and Heritage is the department of the executive government of the State of Western Australia whose functions include servicing the Western Australian Planning Commission; that Ms McGowan, Mr Cook and Mr Ellenbroek 61 ts 22 (10 October 2024). -- 50 of 93 -- [2026] WASC 335 STRK J Page 51 were at relevant times employees of the State with whom Mr Kostezky interacted; and that Ms McGowan was at material times the CEO and Director General of Department of Planning, Lands and Heritage.62 117 The WAPC defendants note that Mr Kostezky asserts that 'bad faith', 'abuse of power and authority' and 'reckless indifference' to various things by Ms McGowan, Mr Cook and Mr Ellenbroek is apparent in or can be inferred from the pleaded interactions, which are said to form the basis for the alleged misfeasance.63 In summary, the WAPC defendants' position is that:64 (a) the pleaded conduct and evidence show that this is a case in which the relevant officers attempted to assist Mr Kostezky to navigate the planning system in the absence of any dishonesty or malice; (b) there is no basis on which dishonesty, malice or action beyond power can be made out, so that Mr Kostezky's claims are untenable; (c) any damage suffered by Mr Kostezky did not arise from the conduct of WAPC defendants. Rather, it was Mr Kostezky's decision to refrain from seeking necessary approvals, and his failure to apply was not caused or induced by any reliance on representations made by the WAPC defendants - to the contrary, he was advised to make an application; and (d) further, the mere giving of advice as to the position that would be taken if Mr Kostezky were to submit plans for approval is not capable of being characterised as a de facto exercise of power incidental to each WAPC defendant's public office, and in this regard, the position of the WAPC defendants is not materially different to the CoJ defendants (and the submissions made on behalf of the CoJ defendants in this regard are equally applicable to the WAPC defendants65). 118 As to the impugned correspondence in 2019 and 2020, and the referral to the CCC, again it is the position of the WAPC defendants 62 WAPC defendants' outline of submissions filed on 17 May 2024, par 6. 63 WAPC defendants' outline of submissions filed on 17 May 2024, pars 5 - 8. 64 WAPC defendants' outline of submissions filed on 17 May 2024, pars 27 - 30. 65 ts 23 (10 October 2024). -- 51 of 93 -- [2026] WASC 335 STRK J Page 52 that the assertion that the correspondence and referral amounts to misfeasance is untenable.66 Mr Kostezky's response to the applications 119 On 5 July 2024 Mr Kostezky filed an affidavit sworn by him on 4 July 2024 in opposition to the application pressed on behalf of the WAPC defendants, and on 16 July 2024 he filed an affidavit sworn by him on 4 July 2024 in opposition to the application pressed on behalf of the CoJ defendants. 120 In response to the written outline of submissions filed on behalf of the CoJ defendants on 17 May 2024, Mr Kostezky filed a written outline of submissions in reply on 5 July 2024; and in response to the written outline of submissions filed on behalf of the WAPC defendants on 17 May 2024, Mr Kostezky filed a written outline of submissions in reply on 5 July 2024. 121 Mr Kostezky opposed the applications and in the papers filed he sought to emphasise that no application for leave to bring the applications out of time was pressed and should have been filed earlier; that he had not been personally served with the applications; and that the applications must fail in circumstances where the defendants had not yet filed their respective defences to his claims. 122 In the written outlines filed by Mr Kostezky he recorded that he had filed on 24 August 2023 an affidavit sworn by him on 21 August 2023, and that was a document relevant to the applications.67 123 At the hearing of the applications Mr Kostezky was heard in opposition to the orders sought by the defendants. In addition to the procedural matters raised in the papers he filed in advance of the hearing, he also joined issue with some of the submissions made on behalf of the defendants. I understand Mr Kostezky to maintain that the giving of advice as to the position that would be taken if he were to submit plans for approval was capable of being characterised as an exercise of power incidental to the defendants' public office.68 124 In the course of the hearing of the applications Mr Kostezky said words to the effect that in his work, he tries never to make an 66 WAPC defendants' outline of submissions filed on 17 May 2024, pars 38 - 39. 67 Folios 2 - 5 of the court record; Mr Kostezky's outline of submissions filed in opposition to the application of the CoJ defendants on 5 July 2024, par 2.2; Mr Kostezky's outline of submissions filed in opposition to the application of the WAPC defendants on 5 July 2024, par 2.2. 68 See ts 60 - 61 (10 October 2024). -- 52 of 93 -- [2026] WASC 335 STRK J Page 53 application until he knows what the outcome will be.69 He confirmed that he maintains as follows: (a) When a developer liaises with the decision maker early, and where advice is provided in that context, the giving of that advice is a use of public power.70 In support of the same Mr Kostezky noted that there are many situations where advice is given and no application required, and asked rhetorically if advice has no meaning at all at law, then where are we?71 (b) The advice provided was knowingly wrong.72 (c) There was no utility in making an application as the advice provided was unequivocal - neither the City of Joondalup nor the WAPC would be supportive of the development.73 (d) Had Mr Kostezky proceeded to make an application which was then refused, the State Administrative Tribunal would have no jurisdiction to deal with the matter as it only has jurisdiction concerning matters where discretion is exercised, not planning matters where a development was deemed to comply.74 125 Mr Kostezky also maintains that that there are a number of issues that the court ought determine or resolve as preliminary issues before trial, and as they are matters of importance, his claims ought not be struck out.75 They are discussed below. Relevant statutory provisions and principles 126 The framework and principles by which applications such as those pressed on behalf of the CoJ defendants and the WAPC defendants are to be addressed are well understood and uncontentious. 69 ts 40 (10 October 2024). 70 ts 60 (10 October 2024). 71 ts 61 (10 October 2024). 72 ts 65 (10 October 2024). 73 ts 75 (10 October 2024). 74 ts 70 - 71, 74 - 75 (10 October 2024). 75 ts 36 - 37 (10 October 2024). -- 53 of 93 -- [2026] WASC 335 STRK J Page 54 Summary judgment 127 Summary judgment is a procedure designed to deal with cases that are not fit for trial.76 Order 16 r 1(1) of the Rules of the Supreme Court provides as follows: Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order — (a) that judgment be entered for the defendant with or without costs; or (b) that the plaintiff shall proceed to trial without pleadings, or if all parties consent, may dispose of the action finally and without appeal in a summary manner. 128 As is recorded in O 16 r 1(1), the court may order that judgment be entered for the defendant, with or without costs, if satisfied that: (1) the action is frivolous or vexatious; (2) the defendant has a good defence on the merits; or (3) the action should be disposed of summarily. In substance, each of those three matters amounts to the same thing - that the plaintiff's action is so clearly untenable that it could not possibly succeed at a trial in the ordinary way.77 129 Further, there is power to dismiss summarily part only of a claim, whether that power falls to be exercised under the inherent jurisdiction or under O 16.78 130 The application is to be made by summons supported by an affidavit or affidavits verifying the facts on which the application is based (O 16 r 1(2) Rules of the Supreme Court). The plaintiff may show cause against the application by affidavit (O 16 r 2(1) Rules of the Supreme Court). Unless the court otherwise directs, the parties' affidavits may contain statements of information or belief provided that 76 Three Rivers District Council v Bank of England [No 3] [2001] UKHL 16; [2003] 2 AC 1; cited in Pisano v South Metropolitan Health Service [2023] WASCA 80; (2023) 414 ALR 130 [48]. 77 Pisano v South Metropolitan Health Service [49] - [50]; NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [52]; Mazzuchelli v Mazzuchelli [2007] WASC 21 [20]. 78 Bride v The Australian Bank Limited (Unreported, WASC Full Court, Library No 950632AC, 21 November 1995), 9 - 10. -- 54 of 93 -- [2026] WASC 335 STRK J Page 55 the sources and grounds for the information or belief are disclosed (O 16 r 1(3) and r 2(1a) Rules of the Supreme Court).79 131 In Pisano v South Metropolitan Health Service at [52], the Court of Appeal recorded the well-established general principles that apply on a defendant's application for summary judgment under O 16 r 1(1). They are reproduced here: 1. The power to order summary judgment is one that should be exercised with great care (sometimes expressed as 'exceptional caution'). A party should not ordinarily be denied the opportunity to have its case determined following trial. It is only in the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the proceedings if they were to go to trial, that summary judgment ought properly to be granted. Accordingly, summary judgment will be granted only where it is clear there is no real question to be tried. 2. Put alternatively, the relevant question for summary dismissal is whether, on the materials before the court, it has been demonstrated that the plaintiff's action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail. 3. At all times the defendant retains the legal onus of demonstrating that the application for summary judgment ought to succeed. The defendant must establish that there is no real question to be tried on any cause of action raised by the plaintiff. 4. If a defendant's affidavit material establishes the basis for the summary judgment application, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given. The plaintiff may, by an affidavit to show cause pursuant to O 16 r 2(1) RSC, seek to demonstrate the existence of a triable issue. The plaintiff's affidavit must condescend to particulars - it must set out facts which establish that it is reasonable to allow the plaintiff to pursue the action. 5. Actions should not be disposed of summarily where the material factual issues between the parties are in dispute. Similarly, summary dismissal should not be awarded simply because the court has formed the view that the plaintiff is unlikely to succeed on the factual issues. Unless the evidence is inherently incredible, where there is a conflict in the affidavit evidence the court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting judgment will be accepted at trial. But the court is not bound to 79 As summarised in Pisano v South Metropolitan Health Service [51]. -- 55 of 93 -- [2026] WASC 335 STRK J Page 56 accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit however inherently improbable in itself or equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the deponent. 6. Where a plaintiff's claim depends on propositions of law apparently precluded by existing authority that may not always be the end of the matter. The court should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained. 7. It is not the case that summary judgment will only be given where the action is so hopeless as to not require argument. Extensive argument may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed. 8. On an application under O 16 r 1(1) RSC the plaintiff is confined to the causes of action pleaded in the statement of claim (although the statement of claim will be construed broadly and generously, with ambiguities assumed in favour of the plaintiff, and a reasonable application to amend will be permitted). It is not for the court to identify or accept possible causes of action which are arguably available on the evidence but are not pleaded. (footnotes omitted) Strike out 132 Order 20 r 19(1) of the Rules of the Supreme Court provides: The Court may at any stage of the proceedings, subject to subrule (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that — (a) it discloses no reasonable cause of action or defence, as the case may be; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. -- 56 of 93 -- [2026] WASC 335 STRK J Page 57 133 The principles in relation to strike out applications were summarised by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 at [60].80 They are as follows: (a) the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet; (b) a statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet; (c) a statement of claim must state specifically the relief or remedy claimed; (d) the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial; (e) in alleging no reasonable cause of action: (i) the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and (ii) 'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable; (f) the mere fact that a case appears weak is not of itself sufficient to strike out the action; (g) in considering a strike out application, it is now necessary to consider the role of pleadings in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA) are often promoted by a clear and precise statement of the issues for decision; 80 Approved in English v Vantage Holdings Group Pty Ltd [2021] WASCA 477 [55] - [56]. -- 57 of 93 -- [2026] WASC 335 STRK J Page 58 (h) provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment; (i) pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general; and (j) irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues. (citations omitted) 134 The CoJ defendants and the WAPC defendants both press (among other things) their applications pursuant to O 20 r 19(1)(a), and allege no reasonable cause of action. As is recorded above, in alleging no reasonable cause of action, (i) the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and (ii) 'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable. 135 The court must proceed on the basis that the facts alleged in the pleading are established.81 No evidence is admissible on an application under subrule (1)(a).82 136 Conceptually, the plea under challenge must be, in effect, taken at its highest as it presents; however, documents referred to by the pleading may be legitimately referred to in the evaluative process.83 If 81 English v Vantage Holdings Group Pty Ltd [104]. 82 Rules of the Supreme Court O 20 r 19(2). 83 LexisNexis, Civil Procedure Western Australia (at 12 August 2026) [20.19.5], referring to Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 4] [2020] WASC 382 [10], which cites Day v William Hill (Park Lane) Ltd [1949] 1 KB 632. -- 58 of 93 -- [2026] WASC 335 STRK J Page 59 an allegation that purports to derive from a document referred to expressly in the pleading is not supported by what is contained in the document, the allegation is liable to be struck out.84 137 On behalf of the CoJ defendants and the WAPC defendants it was acknowledged that their reliance on O 20 r 19(1)(a), (b) and (d) likely adds little of substance to their application for summary judgment.85 Further, it was suggested that whether it is more efficient to grant summary judgment or to strike out those paragraphs of the indorsement to the writ concerning the CoJ defendants may depend on the result of the WAPC defendants' application for similar relief. I proceed cognisant of the same. Disposition The need for leave 138 Mr Kostezky opposes the applications on the basis that within 21 days after appearance the defendants did not apply for the orders they now seek pursuant to O 16 r 1(1); that within 21 days of the service of the writ the defendants did not apply for the orders they now seek pursuant to O 20 r 19(1); and that he was not aware of there being now any application for leave made by any defendant as is required by O 16 r 1(1) and O 20 r 19(3)(a) of the Rules of the Supreme Court.86 139 As to the question of whether the applications were made out of time and leave is required, the relevant procedural history is as follows: (a) On 2 August 2023 the writ was filed. (b) The WAPC and the State of Western Australia each entered an appearance on 13 October 2023. (c) A conditional appearance was entered for the City of Joondalup, Ms Page and Mr Leigh on 13 October 2023, which 14 days thereafter became and operated as an unconditional appearance pursuant to O 12 r 6(2) of the Rules of the Supreme Court. 84 LexisNexis, Civil Procedure Western Australia (at 12 August 2026) [20.19.5], referring to H Hood Group Investments No 9 Pty Ltd v Advanced Braking Technology Ltd [2011] WADC 29; (2011) 76 SR (WA) 130 [8], citing Day v William Hill (Park Lane) Ltd (639). 85 CoJ defendants' outline of submissions filed on 17 May 2024, par 7, citing NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [42]; ts 23 (10 October 2024). 86 Mr Kostezky's outline of submissions filed in opposition to the application of the CoJ defendants on 5 July 2024, pars 5 - 6, 15 - 16, 18 - 19; Mr Kostezky's outline of submissions filed in opposition to the application of the WAPC defendants on 5 July 2024, pars 5 - 6, 16 - 17, 19 - 20. -- 59 of 93 -- [2026] WASC 335 STRK J Page 60 (d) Ms McGowan, Mr Cook and Mr Ellenbroek each entered an appearance on 6 November 2023. (e) Pursuant to the O 43 r 16 of the Rules of the Supreme Court, and by the consent of the parties recorded in a memorandum of proposed consent orders filed 21 February 2024, the court on 21 February 2024 made orders in the following terms: 1. The Plaintiff have leave to file an amended indorsement of claim by 15 March 2024. 2. The Defendants have leave to make any application for summary judgment or to strike out the writ or indorsement of claim by 5 April 2024. 3. The case management conference listed on 22 February 2024 at 10am be vacated and relisted on Thursday, 11 April 2024 at 10am. 4. The costs of this minute be in the cause. (f) Mr Kostezky did not file an amended indorsement of claim by 15 March 2024, or at all. (g) The applications were presented for filing via the electronic case management system for the management of proceedings in Western Australian courts and tribunals (ECMS). A stamp was applied to each summons which recorded the date of filing as 5 April 2024 via elodgment, and a court seal was applied.87 140 As was recorded on behalf of the WAPC defendants, upon a written consent as described at [139(e)] being filed, a registrar, may settle, sign and seal the order without any other application being made;88 once made, such order shall be of the same force and validity as if it had been made after a hearing by the court;89 and the order made on 21 February 2024 was not appealed, and no application was made to set it aside.90 141 By order 2 of the orders made on 21 February 2024 leave was granted to the defendants to make any application for summary judgment or to strike out the writ or indorsement of claim by 5 April 87 Folios 19 and 22 of the court record. 88 Rules of the Supreme Court O 43 r 16(2); WAPC defendants' outline of submissions filed on 25 July 2024, par 5. 89 Rules of the Supreme Court O 43 r 16(3); WAPC defendants' outline of submissions filed on 25 July 2024, par 6. 90 WAPC defendants' outline of submissions filed on 25 July 2024, par 7. -- 60 of 93 -- [2026] WASC 335 STRK J Page 61 2024. A document filed electronically is taken to have been filed on the day and at the time recorded by the ECMS.91 A stamp was applied to each summons which recorded the date of filing as 5 April 2024 via elodgment. Therefore, the CoJ defendants and the WAPC defendants made their respective applications within the additional time permitted by order 2 of the orders made on 21 February 2024. No further extension of time was required in circumstances where leave to file outside of the timeframes prescribed by the Rules of the Supreme Court had been granted with the consent of all parties, including Mr Kostezky. 142 Further, I accept the submission made on behalf of the WAPC defendants that in circumstances where the order made on 21 February 2024 was consented to, complied with, relied upon and the chamber summonses having been programmed and listed for final hearing in the presence of Mr Kostezky, there is no basis on which it would now be appropriate to set it aside.92 143 Mr Kostezky suggested that there was no power to extend the 21 day period, by leave granted with the consent of the parties or otherwise.93 That is not the case. While any such application should be brought promptly, and a failure to promptly apply will often result in an application being dismissed,94 the court has the power to extend time.95 In this case it did so by an order made with the consent of the parties. 144 In the circumstances described above, the absence of leave is not a basis for the applications to be refused. Service of the applications 145 Mr Kostezky does not complain that he was not served with the applications and papers filed in support. Rather, Mr Kostezky opposes the applications on the basis that he was not personally served with the chamber summons filed on behalf of the CoJ defendants, or the chamber summons filed on behalf of the WAPC defendants,96 as was 91 Rules of the Supreme Court O 67A r 4(10). 92 WAPC defendants' outline of submissions filed on 25 July 2024, par 7; second affidavit of IA Repper affirmed on 25 June 2024, pars 10 - 14; affidavit of AM Pull affirmed on 25 July 2024, pars 8 - 15, AMP 13. 93 ts 73 (10 October 2024). 94 LexisNexis, Civil Procedure Western Australia (at 12 August 2026) [20.19.3], citing Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314, 320, 331, 334. 95 LexisNexis, Civil Procedure Western Australia (at 12 August 2026) [20.19.3]. See by way of example, Robinson v Quinlivan [2005] WASC 196 [29]. 96 Mr Kostezky's outline of submissions filed in opposition to the application of the CoJ defendants on 5 July 2024, pars 7, 17; Mr Kostezky's outline of submissions filed in opposition to the application of the WAPC defendants on 5 July 2024, pars 7, 18. -- 61 of 93 -- [2026] WASC 335 STRK J Page 62 required by the consent order made by Master Russell on 23 April 2024.97 146 The orders made by Master Russell on 23 April 2024 did not concern service of the applications. The orders then made were as follows: 1. The hearing listed in the Master's List at 9:45am on 23 April 2024 is vacated. 2. The Applications are listed for directions in the Master's List at 9:45am on 11 June 2024. 3. By 17 May 2024, the defendants are to file and serve an outline of submissions and list of authorities in support of their respective chamber summonses filed on 5 April 2024 (Applications). 4. The costs of preparing the memorandum of consent orders be in the cause of the Applications. 147 The Rules of the Supreme Court O 72 r 1(1) provides that any document which by virtue of these rules is required to be served on any person need not be served personally unless the document is one which by an express provision of these rules or by order of the court is required to be so served. 148 The applications were made by chamber summons. No express provision of the Rules of the Supreme Court requires that an application in chambers made by chamber summons be personally served, nor was any order made requiring that the chamber summonses be personally served (by Master Russell on 23 April 2024 or otherwise). 149 In the circumstances, personal service of the chamber summonses by which the applications were pressed was not required, and therefore the fact that they were not personally served is not a basis for the applications to be refused. 97 Mr Kostezky's outline of submissions filed in opposition to the application of the CoJ defendants on 5 July 2024, par 17; Mr Kostezky's outline of submissions filed in opposition to the application of the WAPC defendants on 5 July 2024, par 18. -- 62 of 93 -- [2026] WASC 335 STRK J Page 63 Whether summary judgment is available in the absence of filed defences 150 In the papers filed in opposition to the applications Mr Kostezky submitted that in order for:98 strike out or summary judgement to succeed, an element in the Court's considerations of this Summons, in relation to Order (16)(1)(1) are the words 'and that the defendant has a good defence on the merits'. 151 He further submitted that in the absence of any filed defence by the CoJ defendants and the WAPC defendants, let alone 'a good defence on the merits', 'frivolousness and/or vexatiousness may not stand'.99 152 As is recorded in O 16 r 1(1), the court may order that judgment be entered for the defendant, with or without costs, if satisfied that: (1) the action is frivolous or vexatious; (2) the defendant has a good defence on the merits; or (3) the action should be disposed of summarily (emphasis added). As was noted on behalf of the CoJ defendants, the list of circumstances in which the court may order that judgment be entered for the defendant, with or without costs, is disjunctive not conjunctive.100 153 In the course of the hearing I understood Mr Kostezky to concede this point.101 The concession was properly made. 154 As is recorded above, in substance, each of the three matters recorded in O 16 r 1(1) amounts to the same thing - that the plaintiff's action is so clearly untenable that it could not possibly succeed at a trial in the ordinary way.102 It is not necessary for a defence to be pleaded before that evaluation can occur. The absence of pleadings on the part of the CoJ defendants and the WAPC defendants is not a basis for their applications to be refused. 98 Mr Kostezky's outline of submissions filed in opposition to the application of the CoJ defendants on 5 July 2024, pars 3, 13; Mr Kostezky's outline of submissions filed in opposition to the application of the WAPC defendants on 5 July 2024, pars 3, 14. 99 Mr Kostezky's outline of submissions filed in opposition to the application of the CoJ defendants on 5 July 2024, pars 4, 14; Mr Kostezky's outline of submissions filed in opposition to the application of the WAPC defendants on 5 July 2024, pars 4, 15. 100 CoJ defendants' outline of submissions filed on 25 July 2024, par 2; ts 18 (10 October 2024). 101 ts 73 (10 October 2024). 102 Pisano v South Metropolitan Health Service [49] - [50]; NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [52]; Mazzuchelli v Mazzuchelli [20]. -- 63 of 93 -- [2026] WASC 335 STRK J Page 64 Applicable legal principles - tort of misfeasance in public office 155 In Pisano v South Metropolitan Health Service at [57] to [61], the Court of Appeal outlined the nature of the tort of misfeasance in public office. I adopt the same in the disposition of this application: In 1995 five members of the High Court described the tort of misfeasance in public office as well-established albeit that its precise limits were undefined.103 … Misfeasance in public office is concerned with the performance of public duties - in particular with the misuse of public power.104 The core concept is one of dishonest abuse of power.105 The rationale of the tort is that in a legal system based on the rule of law, executive or administrative power may be exercised only for the public good and not for ulterior and improper purposes.106 The tort of misfeasance in public office is an intentional107 (or deliberate)108 tort. It consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to the plaintiff. The tort has a mental element. While, on the authorities, there is some debate as to the precise limits of the mental element, it is clear that the mental element is satisfied where the public officer engages in the impugned conduct with malice (ie an intention to injure) or knowledge that there is no power to engage in that conduct and that the conduct is calculated to produce injury. It has also been said that reckless indifference as to those matters will suffice as being inconsistent with an honest attempt to perform the functions of a public office. So understood the tort is concerned with conduct which is properly characterised as an abuse of office and with the results of that conduct.109 Conformably with this broad summary, Allsop P (as his Honour was then) has described the tort as being concerned with the exercise of governmental or executive power vested in a person with a power or duty to exercise it.110 This echoes an observation of Lord Hobhouse of Woodborough in Three Rivers (No 3). His Lordship stated that the tort 103 Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, 345. 104 Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 [37], [39]. 105 Three Rivers District Council v Bank of England [No 3] (235); Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149 [97], [108]. 106 Three Rivers District Council v Bank of England [No 3] (190). 107 Sanders v Snell [42]. 108 Northern Territory of Australia v Mengel (345). 109 Northern Territory of Australia v Mengel (356 - 358), (370 - 371). But, as to reckless indifference, compare Northern Territory of Australia v Mengel (347). 110 Leerdam v Noori [2009] NSWCA 90; (2009) 227 ALR 553 [50]. To similar effect see Three Rivers District Council v Bank of England [No 3] (229); Society of Lloyd's v Henderson [2007] EWCA Civ 930; [2008] 1 WLR 2255 [23]; Leerdam v Noori [104]. -- 64 of 93 -- [2026] WASC 335 STRK J Page 65 concerned 'the acts of those vested with governmental authority and the exercise of executive powers'.111 Also in the United Kingdom, Buxton LJ has summarised the nature of the wrong as one where a public official, who is given powers for public, governmental purposes, misuses them for a different purpose, conscious that in doing so he or she may injure the claimant.112 The authorities identify various elements to be proved to make out the tort.113 For present purposes it is enough to say that, among other things, the alleged tortfeasor must hold a public office and the act complained of must be an exercise of public power.114 156 As to the various elements to be proved to make out the tort, in Northern Territory of Australia v Mengel Deane J noted as follows:115 As Lord Diplock observed, in delivering the judgment of the Privy Council in Dunlop v Woollahra Municipal Council (339), the tort of misfeasance in public office is 'well-established'. Its elements are: (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case. 157 By way of further example, North and Rares JJ in Nyoni v Shire of Kellerberrin [2017] FCAFC 59; (2017) 248 FCR 311 at [97] observed:116 The elements of the tort of misfeasance in public office have been crafted carefully to ensure that they do not encompass the negligent or unintentional acts or omissions of a public official. The tort requires, first, a misuse of an office or power, secondly, the intentional element that the officer did so either with the intention of harming a person or class of persons or knowing that he, she or it was acting in excess of his, her or its power, and, thirdly, that the plaintiff (or applicant) suffered special damage or, to use Lord Bingham's more modern characterisation, 'material damage' such as financial loss, physical or mental injury, including recognised psychiatric injury (but not merely 111 Three Rivers District Council v Bank of England [No 3] (229). 112 Society of Lloyd's v Henderson [24]. See also [21]. 113 See eg Northern Territory of Australia v Mengel (370); Three Rivers District Council v Bank of England [No 3] (191 - 196); Sanders v Snell (No 2) [95] - [96]; Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 [34], [40]; Society of Lloyd's v Henderson [22]. 114 Obeid v Lockley [2018] NSWCA 71; (2018) 98 NSWLR 258 [103]. 115 Northern Territory of Australia v Mengel (370), citing Dunlop v Woollahra Municipal Council [1982] AC 158. 116 The reference to Watkins is a reference to Watkins v Secretary of State for the Home Department [2006] UKHL 17; [2006] 2 AC 395. -- 65 of 93 -- [2026] WASC 335 STRK J Page 66 distress, injured feelings, indignation or annoyance): see Watkins at [7], [27]. 158 As to the limits of the tort, there remains some controversy as to the ambit of the requirement that the impugned act requires an exercise of public power.117 On the present state of the authorities, it may be sufficient for the impugned act to be an exercise of de facto power incidental to a public office held by the defendant.118 159 For the purposes of the applications, the CoJ defendants and the WAPC defendants accept that it is arguable that the tort may be committed by the exercise of de facto power incidental to a public office.119 Consideration of the issues raised by the defendants 160 The indorsement of claim is lengthy. Mr Kostezky seeks to prosecute a claim which he articulates with considerable detail. The written communications referenced and relied upon by Mr Kostezky to ground his claim have been attached to the affidavits of Ms Pull and Mr Repper. 161 The WAPC defendants approached the application on the basis that the facts were not controversial. To the extent that Mr Kostezky in his pleading and first affidavit recounts facts which concern the WAPC defendants, they say that Mr Kostezky has generally provided a fair account of what happened.120 While the same concession was not expressly made on behalf of the CoJ defendants, all defendants approached the applications by seeking to made good their submission that Mr Kostezky's claims taken at their highest have no prospects of success. 162 Having given careful consideration to the claims prosecuted by Mr Kostezky, for the following reasons, I find that the claims are so clearly untenable against all of the defendants that they could not possibly succeed at a trial in the ordinary way. 117 State of New South Wales v Spedding [2023] NSWCA 180; (2023) 309 A Crim R 519 [44], referring to Ea v Diaconu [2020] NSWCA 127; (2020) 102 NSWLR 351. 118 As was recorded in the CoJ defendants' outline of submissions filed on 17 May 2024, par 13, referring to Ea v Diaconu [32] - [60] (Payne JA), [72] - [129] (White JA), [138] - [163] (Simpson AJA), and to Nyoni v Shire of Kellerberrin [103] - [109] (North & Rares JJ), [151] - [165] (Dowsett J). Further, in the WAPC defendants' outline of submissions filed on 17 May 2024 par 22, referring to Pisano v South Metropolitan Health Service [106]; Obeid v Lockley [103], and Ea v Diaconu. 119 CoJ defendants' outline of submissions filed on 17 May 2024, par 14; WAPC defendants' outline of submissions filed on 17 May 2024, par 22. 120 WAPC defendants' outline of submissions filed on 17 May 2024, par 23. -- 66 of 93 -- [2026] WASC 335 STRK J Page 67 No exercise of public power 163 As is recorded above, the CoJ defendants submit that Mr Kostezky's claims against them are untenable and must fail when regard is had to the alleged exercise of public power by a public officer. 164 To establish the tort, the impugned act must have involved the exercise of power as a public officer, and the CoJ defendants say that in this case the impugned acts are not an exercise of public power, and they are not even capable of being characterised as a de facto exercise of power incidental to each defendant's public office. 165 As to this point, the WAPC defendants say that their position is not materially different to the CoJ defendants (and the submissions made on behalf of the CoJ defendants in this regard are equally applicable to the WAPC defendants). 166 As Lord Bridge observed in Calveley v Chief Constable of Merseyside Police [1989] AC 1228 at 1240: … the tort of misfeasance in public office … must … involve an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds … 167 The point raised by the defendants is not directed to whether Ms Dale, Mr Leigh, Ms McGowan, Mr Cook or Mr Ellenbroek were 'public officers'. (Indeed, for the purposes of their application, the WAPC defendants accept that it is appropriate to assume in Mr Kostezky's favour that Ms McGowan, Mr Cook and Mr Ellenbroek held a public office.121) 168 Rather, the point is directed to the issue of whether, in relation to the impugned act or omission, the officers were relevantly exercising a public power of a public office. As was recorded by the Court of Appeal in Pisano v South Metropolitan Health Service at [104]: Spigelman CJ made it clear in Leerdam that the requirement that the defendant must be a public officer is a 'quite distinct' element from whether the impugned act or omission involved the exercise of power as a public officer.122 121 WAPC defendants' outline of submissions filed on 17 May 2024, par 22. 122 Leerdam v Noori [9]. -- 67 of 93 -- [2026] WASC 335 STRK J Page 68 169 It is therefore appropriate to consider the impugned acts or omissions of the officers named as defendants to the action. Ms Page 170 The claim pleaded against Ms Page is outlined above.123 Central to the claim is the one letter sent by Ms Page to Mr Kostezky dated 7 February 2018. In that letter Ms Page recorded as follows:124 I refer to the above matter and ongoing discussion and correspondence, the most recent of which being Monday, 5 February 2018 to the Customer Relations Advocate. An internal review of this matter has been conducted. The review was conducted with full consideration of the matters you have raised, responses provided by the City and the impact of this matter. It is noted that a recent offer by the City to meet with you was refused. The offer to meet was in attempt to explain the City's position with you, in the hope of an understanding being reached. As previously advised to you by the Planning Approvals and Customer Service areas, and in the letter from the Manager Planning Approvals dated 20 November 2017, general advice in pre-lodgement has been provided to you. This is not an assessment which can be determined. You have been advised that an application needs to be submitted to progress to make a determination and for the City to provide further direction. (emphasis added) Further to this, the volume of correspondence from you has been significant throughout the course of this matter and over a substantial period of time; some of the issues of which you raise have been repetitious in nature. The City has responded to all questions and concerns in an attempt to assist you and provide you clarity of information you seek. The impact of meeting your expectations has required a disproportionate amount of officer time dealing with this matter, therefore taking them away from important duties and in providing services to other members of the community. This is unacceptable, and unfortunately cannot continue. In response to your comments about the Manager of Planning Approvals; the letter was reviewed and it is the City's position that the information provided was accurate and considered and did not validate the response you provide in your email dated 5 February 2018. It is noted that you have made repeated threats of legal action on the basis of alleged misfeasance. The City wishes to advise you that it does 123 See overview of the pleaded claim at [45] - [51] of these reasons. 124 Affidavit of AM Pull affirmed on 5 April 2024, AMP-8. -- 68 of 93 -- [2026] WASC 335 STRK J Page 69 not take lightly to such allegations and will not respond to them now, or in the future. As a result, the City is unfortunately unable to respond over the phone, or in writing, to same or similar issues previously addressed regarding this matter, rather, further correspondence received of this nature will be reviewed and stored in the City's Record Management System and will not be responded to. A development application will need to be submitted before further direction can be provided. It is acknowledged that this may not meet your expectations, as it appears the City is unable to provide you the outcomes you seek. Therefore, should you not be accepting of the information provided by the City to date in relation to this matter, you may wish to have your concerns reviewed by the Ombudsman WA, the details of which are provided below: Ombudsman Western Australia … Mr Leigh 171 The claim pleaded against Mr Leigh is outlined above.125 There are two pleaded interactions. 172 The first is the telephone call on 7 September 2017 during the course of which that Mr Leigh is said to have 'confirmed in totality his support of, and his agreement with the advice conveyed to [Mr Kostezky] by Mr Thornton in his email to [Mr Kostezky] of 17 August 2017'. The substance of that advice was that the design drawings provided by Mr Kostezky had been reviewed by planning staff and in the event that a formal application was lodged, the development as proposed would not be supported.126 173 The second is his letter dated 20 November 2017, which among other things recorded as follows:127 With regards to pre-lodgement assistance and guidance, the City does provide a level of service in this respect, making planning staff available via e-mail, telephone and in person at the City's Main Administration Centre. 125 See overview of the pleaded claim at [26] - [29] and [35] - [40] of these reasons. 126 A copy of the email is attached to the affidavit of AM Pull affirmed on 5 April 2024, AMP-1; and the text of the email is also reproduced in a document attached to the affidavit of IA Repper affirmed on 5 April 2024, IAR 1. 127 Affidavit of AM Pull affirmed on 5 April 2024, AMP-4. -- 69 of 93 -- [2026] WASC 335 STRK J Page 70 As part of this pre-lodgement liaison service, the City can provide general advice on the requirements that may apply to specific lots, however land owners wishing to undertake development of their properties may need to engage the service of a suitably qualified person in designing their development. The appropriateness of a proposal cannot be determined until an application for development approval has been lodged and an assessment undertaken. (emphasis added) As has been demonstrated through your correspondence, the City has engaged with you in a pre-lodgement liaison sense on a number of occasions for extensive periods of time and provided you with preliminary guidance, including a number of concerns, on your current proposal. An application for development approval must now be lodged for the City to provide further direction and a formal determination of the proposal. (emphasis added) Any application lodged will require all of the information contained within the City's Residential Development Checklist (enclosed). A detailed explanation of the land uses, calculations and justification will also be required to be submitted. I hope this information is of assistance. 174 Again, both interactions occurred in the context of pre-lodgment advice and assistance. Ms McGowan 175 The claim pleaded against Ms McGowan is also outlined above.128 There are two pleaded interactions, the letters sent to Mr Kostezky on 23 April 2019 and 31 July 2020, and the fact that the Department of Planning, Lands and Heritage had made a self-referral to the CCC (which referral Mr Kostezky pleads was made by Mr Davies and not Ms McGowan). 176 Ms McGowan in her letter of 23 April 2019 among other things recorded as follows:129 I refer to your correspondence dated 2 April 2019 provided to various officers of the Department of Planning, Lands and Heritage (the Department) and the Minister for Planning's staff. It appears that the essence of your concerns relate to the nature of the pre-lodgement assistance provided by officers of the Department. 128 See overview of the pleaded claim at [80] - [82], [87] - [89], [92] - [94] of these reasons. 129 Affidavit of IA Repper affirmed on 5 April 2024, IAR 7. -- 70 of 93 -- [2026] WASC 335 STRK J Page 71 The pre-lodgement assistance provided by the Department, in advance of a formal planning application being made to the Western Australian Planning Commission (WAPC), is informal and undertaken at an officer level. This assistance does not involve or necessitate a detailed assessment of the proposed planning application. Therefore, at this stage, only a preliminary opinion can be provided as to whether the proposed application is likely to comply with the relevant planning framework. When providing pre-lodgement assistance, officers are unable to provide any confirmation or assurances as to how a formal planning application will be assessed or ultimately determined by the WAPC. Further, officers are unable to provide advice as to the legal interpretation of any local planning scheme provisions. You will need to seek your own independent legal advice in that regard. The Department has sought to assist you to the extent possible without a formal application for approval being made based on the information that you provided and the Department's understanding of your proposal. Until the WAPC receives a formal application from you, the Department is unable to provide any further advice to you on your proposal other than that already provided. (emphasis added) It appears from your correspondence that it is your intent to firstly construct an additional dwelling on your property and subsequently seek to undertake a strata subdivision. If this is the case, and it is not proposed that a vacant strata lot will be created, then the appropriate avenue for progressing your proposal would be to lodge formal applications for development approval and strata subdivision approval with the local government. If the outcome of these processes is not satisfactory to you, then the proper recourse is to make an application for review to the State Administrative Tribunal. With respect to the concerns you have expressed regarding the quality of the Department's pre-lodgement assistance, an appropriate avenue to direct your complaint may include the Western Australian Ombudsman. Please see the following website for contact details www.ombusman.wa.gov.au. 177 In her letter dated 31 July 2020 Ms McGowan recorded as follows:130 I write with reference to your letter dated 22 April 2020, and further to the letter to you from Mr Vaughan Davies, Acting Director General, Department of Planning, Lands and Heritage (the Department) dated 14 August 2019. 130 Affidavit of IA Repper affirmed on 5 April 2024, IAR 11. -- 71 of 93 -- [2026] WASC 335 STRK J Page 72 In response to your claims pertaining to the conduct of State Government employees, including officers of the Department, the Department referred the matter to the Corruption and Crime Commission (CCC) in accordance with the requirements of section 28 of the Corruption, Crime and Misconduct Act 2003 (the Act). After considering the matter, the CCC concluded there was no cause for investigation and closed its file. The Western Australian Planning Commission, its members and the staff and officers of the Department which support it have, at all times, conducted themselves with integrity, professionalism and in full accordance with the law. Any inference to the contrary is not accepted. It would be inappropriate to provide you with the names of particular officers in order to facilitate your foreshadowed legal action against us. Their conduct does not give rise to any cause of action and, any allegation that it does, is expressly denied. I further advise that section 267 of the Planning and Development Act 2005 provides protection against personal liability for officers of the Department. I am advised that officers of the Department have corresponded with you on numerous occasions regarding your proposal. There is now nothing further the Department can assist you with in this regard and you may now wish to seek independent planning and/or legal advice. Mr Cook 178 The claim pleaded against Mr Cook is outlined above.131 It is grounded upon a telephone conversation in June 2018, and an email sent to Mr Kostezky on 1 October 2018. 179 Mr Kostezky relevantly pleads that during the conversation Mr Cook endorsed and confirmed the advice from Ms Hodson as was contained in her last email to Mr Kostezky on 28 May 2018 relating to the 10 metre issue, the WAPC being the decision maker issue, and the surprising, unexpected advice relating to the irregular site issue; and that when Mr Kostezky sought the planning justification behind the interpretation of the 10 metre issue applying to each lot of a development rather than to the development as a whole, Mr Cook refused to discuss the matter or advise Mr Kostezky further, and instead stated that if he wished further clarification, he must make an application to the WAPC, and if not satisfied with the result, he could take it to the SAT.132 131 See overview of the pleaded claim at [59] - [60], [63] - [67] of these reasons. 132 See overview of the pleaded claim at [65] - [67] of these reasons. -- 72 of 93 -- [2026] WASC 335 STRK J Page 73 180 As to the email communication, Mr Cook recorded as follows:133 I refer to previous conversations which you have had with various officers of this Department, including myself; and also to your email correspondence with my colleague Emma Hodson about your proposal in respect to 81 Conidae Drive, Heathridge. As you have been previously advised on a number of occasions, it is the Department's position that should you wish to lodge an application for subdivision on the basis of the proposal which you have presented us with, it is highly unlikely that this would be supported. Should you wish to lodge an application for subdivision, you will need to make a formal application to the WAPC, however, lodgement of an application does not necessarily mean that an application will be supported. Should you be aggrieved by any future decision on a subdivision application, you will have the right to seek a review by the State Administrative Tribunal. (emphasis added) As you have indicated that you wish to take Supreme Court action, should you wish to receive any further casual officer level advice in respect of your proposal you will need to request this in writing. Kind Regards 181 The interactions occurred in a context where Mr Kostezky had approached the WAPC for advice and assistance in advance of any formal planning application being made to either the City of Joondalup or the WAPC. Indeed, Mr Kostezky's pleading makes plain that he was particularly focused on securing advice and guidance from the officers of the WAPC in relation to development approval he wanted to secure from the City of Joondalup but for which he had not yet applied. Mr Ellenbroek 182 The claim pleaded against Mr Ellenbroek is outlined above.134 It is grounded upon a telephone conversation he had with Mr Kostezky on 1 November 2018, in which he relevantly 'confirmed and endorsed the interpretation of DCP 2.2 by Emma Hodson, as confirmed by WAPC planning officers "at manager and director level", in relation to the "fundamental objective" to facilitate the supply of residential lots in "regular shapes" of the Development Control Policy 2.2 of October 2017'.135 133 Affidavit of IA Repper affirmed on 5 April 2024, IAR 5. 134 See overview of the pleaded claim at [70] - [74] of these reasons. 135 Mr Kostezky's emphasis. -- 73 of 93 -- [2026] WASC 335 STRK J Page 74 183 Mr Kostezky's pleading makes plain that he was particularly focused on securing advice and guidance from the officers of the WAPC in relation to the final choice of language in the version of Development Control Policy 2.2 - Residential Subdivision dated October 2017; the proper interpretation of the policy; whether the policy was based on rational or valid planning principles; and how it would likely be applied if he were to make an application for development approval to the City of Joondalup or subdivision approval to the WAPC - but for which he had not applied. Proper characterisation 184 After giving careful consideration to the pleading and the documents referenced in the pleading, I consider counsel for the CoJ defendants' characterisation of the actions of Ms Page and Mr Cook to be accurate. In essence, Ms Page and Mr Cook are alleged to have advised Mr Kostezky as to the position the City of Joondalup's planning department would take if Mr Kostezky were to submit his proposed development plans for approval, with which position Mr Kostezky disagreed, and that, in those circumstances, Mr Kostezky should proceed to make his application for approval so as to obtain a formal decision.136 No application to the City of Joondalup for development approval was ever made by Mr Kostezky. 185 As to the interactions with Ms McGowan, Mr Cook and Mr Ellenbroek (officers of the WAPC), they occurred in a context where Mr Kostezky had approached WAPC for advice and assistance in advance of any formal planning application being made to either the City of Joondalup or the WAPC. 186 Mr Kostezky pleads that one of the reasons he contacted the WAPC on 21 September 2017 was to 'explore the option in the advice by phone by Mr Thornton on 11 August 2017, that [Mr Kostezky] "had the option to lodge an application to the WAPC for subdivision approval of the lots, to have a greater certainty of having a development on the back half of lot approved"'. However, no application was made to the WAPC for subdivision approval, and it would appear from his pleading that he was not minded to seek subdivision approval.137 136 CoJ defendants' outline of submissions filed on 17 May 2024, par 16. 137 See [52(c)] above. -- 74 of 93 -- [2026] WASC 335 STRK J Page 75 Status of pre-lodgment advice 187 Neither counsel for the CoJ defendants nor Mr Kostezky referred to a statutory basis for the practice of providing pre-lodgment advice by planners employed by the City of Joondalup. 188 As to the basis for interactions with the WAPC defendants, counsel for the WAPC defendants noted that a statutory function of the WAPC is to provide advice and assistance (not a statutory duty).138 189 No authority in which the status of pre-lodgement advice in a planning context was cited. 190 In his letter dated 20 November 2017 Mr Leigh described the assistance and guidance provided by officers of the City of Joondalup in the following terms:139 With regards to pre-lodgement assistance and guidance, the City does provide a level of service in this respect, making planning staff available via e-mail, telephone and in person at the City's Main Administration Centre. As part of this pre-lodgement liaison service, the City can provide general advice on the requirements that may apply to specific lots, however land owners wishing to undertake development of their properties may need to engage the service of a suitably qualified person in designing their development. The appropriateness of a proposal cannot be determined until an application for development approval has been lodged and an assessment undertaken. 191 In her letter of 23 April 2019 Ms McGowan described the assistance provided by WAPC officers as follows:140 It appears that the essence of your concerns relate to the nature of the pre-lodgement assistance provided by officers of the Department. The pre-lodgement assistance provided by the Department, in advance of a formal planning application being made to the Western Australian Planning Commission (WAPC), is informal and undertaken at an officer level. This assistance does not involve or necessitate a detailed assessment of the proposed planning application. Therefore, at this stage, only a preliminary opinion can be provided as to whether the proposed application is likely to comply with the relevant planning framework. 138 ts 79 (10 October 2024), referring to the Planning and Development Act s 14 (as amended from time to time). 139 Affidavit of AM Pull affirmed on 5 April 2024, AMP-4. 140 Affidavit of IA Repper affirmed on 5 April 2024, IAR 7. -- 75 of 93 -- [2026] WASC 335 STRK J Page 76 When providing pre-lodgement assistance, officers are unable to provide any confirmation or assurances as to how a formal planning application will be assessed or ultimately determined by the WAPC. Further, officers are unable to provide advice as to the legal interpretation of any local planning scheme provisions. You will need to seek your own independent legal advice in that regard. The Department has sought to assist you to the extent possible without a formal application for approval being made based on the information that you provided and the Department's understanding of your proposal. Until the WAPC receives a formal application from you, the Department is unable to provide any further advice to you on your proposal other than that already provided. Was there an exercise of public power, or a de facto exercise of power incidental to each defendant's public office? 192 In this case, pre-lodgment advice or information was provided to Mr Kostezky in circumstances where no application had been filed. While Mr Kostezky was given a clear indication as to the views of the respective officers (with which he disagreed), it was not suggested that the advice provided would be binding on any ultimate decision maker if an application were made. 193 There was no proper basis for Mr Kostezky's pleaded claim that unless the advice was withdrawn, Mr Kostezky would be forced to stop. 194 Mr Kostezky was not bound to modify his plans so as to act in accordance with the advice before making an application, and he was not prevented from making an application for approval on the basis of his preferred plans. The advice was not an authoritative statement, but guidance as to what might happen. 195 This was not a case where advice could be said to have caused damage. Mr Kostezky's failure to apply was not caused or induced by reliance on the representations made to him. He was advised to make the application. 196 Further, I accept the submission made on behalf of the CoJ defendants that the advice given, at the time given, was necessarily hypothetical, as no application had been, or ever was, submitted for planning approval. I accept that until an application was submitted by Mr Kostezky there could not be an exercise of actual or de facto power by any of the CoJ defendants with respect to his proposed development of the Property. -- 76 of 93 -- [2026] WASC 335 STRK J Page 77 197 The decision of the Court of Appeal in Hove v The University of Western Australia was referenced and relied upon to by way of analogy. It concerned an application for judicial review of a decision made by the university to exclude a student from enrolment in clinical units required to complete a course for a Doctor of Dental Medicine degree made after the university received advice from a health service that it would not consider permitting the student to participate in future clinical rotations due to concern about his clinical ability and resultant patient safety; and judicial review of the advice given by the health service. 198 As to the application for judicial review of the advice given by the health service, the primary judge found that at the time of the commencement of the primary proceedings, the health service had made no decision having legal effect that could be susceptible to judicial review.141 199 For the reasons expressed at [68], the Court of Appeal found that the primary judge had correctly dismissed the application for judicial review of the advice given by the health service on the basis that the advice constituted an answer to a hypothetical question which was not susceptible to judicial review: [T]he Health Service did not, by Dr Glick's email of 7 July 2021, make any decision which is susceptible to judicial review. Professor Ngo's letter of the same date posed a question which was necessarily hypothetical at the time it was asked and answered. At that time there was no [Student Clinical Placement Agreement] between the University and the Health Service. The appellant was not enrolled as a student in any unit for which clinical placement at the Health Service was proposed. The occasion for the Health Service to decide whether to exclude the appellant from the Premises could only arise once those events had occurred. Dr Glick's email of 7 July 2021 points to the Health Service's then current attitude as to how the Health Service might make that decision if those events came to pass. However, his answer to that hypothetical question did not involve the exercise of any public power which might be conditioned by a requirement to accord procedural fairness to the appellant. 200 In this case, the questions posed by Mr Kostezky were necessarily hypothetical when they were asked and answered by Ms Page and Mr Leigh. Further, Mr Kostezky's pleading and the referenced correspondence make plain that he was focused on securing advice and guidance from the officers of the WAPC which would be consistent 141 Hove v The University of Western Australia [25(2)]. -- 77 of 93 -- [2026] WASC 335 STRK J Page 78 with the making of a successful application for development approval without modification to his plans. When he did not receive the advice he wanted, he sought to engage to debate the same and to persuade the officers of the correctness of his view in circumstances where those officers were not the ultimate decision maker. 201 The decision of Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98 concerned subdivision approval granted subject to condition, and an application for review of certain of the conditions where the instrument of approval also contained 12 paragraphs of 'advice to applicant' from the WAPC and the City of Gosnells. In that context, the status of advice notes was described at [78] in the following terms: Such advice notes, although commonly appended to subdivision and development approvals in this State, have no statutory status under the [Town Planning and Development Act 1928 (WA)] or any other legislation. A decision to give such 'advice' is not a 'reviewable decision' for the purposes of the Tribunal Act. Moreover, any function or discretion which the respondent had to give 'advice' was arguably not 'exercisable by [it] in making the reviewable decision' and is, therefore, not available to the Tribunal under s 29(1) of the Tribunal Act. In consequence, the Tribunal does not have power, in its determination of review proceedings concerning a subdivision or development application, to review, endorse or give 'advice'. 202 In Auro Pty Ltd and Western Australian Planning Commission [2008] WASAT 253 at [24] it was noted that there is no provision in the Planning and Development Act that altered the position. 203 Finally, I noted the approach taken by Mullins J (as her Honour then was) in Leinenga v Logan City Council [2006] QSC 294, where her Honour considered whether certain pleaded acts of officers of the local authority supported a claim of damages for misfeasance in public office. Some of the acts pleaded concerned the provision of information, and in the particular circumstances there pleaded, as a matter of law were found not to be the exercise or purported exercise any power on behalf of the council, and therefore as a matter of law could not be the subject of a claim of misfeasance in public office.142 204 As was also observed by her Honour in Leinenga v Logan City Council at [64], the authorities illustrate that the tort of misfeasance in public office is not easily established. It depends on the impugned act 142 Leinenga v Logan City Council [76] - [81], [84] - [86]. -- 78 of 93 -- [2026] WASC 335 STRK J Page 79 being committed by the public officer with the requisite state of mind both in committing the act and in holding the requisite intention to cause the loss or damage that is alleged to flow from the impugned act. It is a very serious allegation to be made against a person who holds public office. It cannot be made in a broad brush way. It requires particularity in setting out the facts that can, if proven, establish the cause of action.143 205 In this case, to the extent that Ms Page, Mr Leigh, Ms McGowan, Mr Cook and Mr Ellenbroek purported to provide pre-lodgment advice and information in response to Mr Kostezky's questions, requests for explanation and requests for justification, their conduct could not, as a matter of law, be the subject of a claim for misfeasance in public office as there was not a relevant exercise of public power, or a de facto exercise of power incidental to each defendant's public office. 206 That is not to say that the provision of advice or information could never be the subject of a claim of misfeasance in public office. However, in this case, I find that the pleaded facts if proven will not establish the cause of action. 207 I note that Mr Kostezky's assertion of misfeasance in public office against Ms McGowan not only includes engagement concerning pre-lodgment advice, but also concerns the self-referral made by the Department of Planning, Lands and Heritage to the CCC. A claim for misfeasance against Ms McGowan by reason of the referral having been made must fail in light of Mr Kostezky's plea that the referral was made by Mr Davies as Acting Director General. There can have been no exercise or de facto exercise of public power on the part of Ms McGowan in such circumstances. The right of review 208 Mr Kostezky pleads that he was advised that if he proceeded to make an application and it was refused, it would be open to him to seek a review of that decision by the SAT,144 which was advice Mr Kostezky did not accept and was conduct which he said grounded the asserted tort. 209 In short, Mr Kostezky pleads that unless the pre-lodgment advice was withdrawn, he was forced to stop. That was articulated in the 143 See Lock v Australian Securities and Investments Commission [2016] FCA 31; (2016) 248 FCR 547 [124] (Gleeson J). 144 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 48.6, 163.4, 170, 180.4. -- 79 of 93 -- [2026] WASC 335 STRK J Page 80 pleading in a number of ways. He pleads that to enable him to pursue further his lawful right to his proposed three grouped dwelling development, he needed to secure either the withdrawal of the advice, or confirmation, reasons, and clarification of it:145 Until withdrawal or confirmation, reasons and clarification were provided by 'the City' [Mr Kostezky] could not act but to submit to the oppressive purported power and force of the authority behind the advice provided, and was forced to halt and stop work on his 3 Gr Dw development and suffer the damage and the consequences of the interruption to his plans and life. 210 He pleads that by reason of the advice, he would be 'forced to submit to the unlawful power of the advice and abandon his proposed development, and suffer and endure the financial, physical and psychological harm and damage due to being deprived of his right to realize lawfully his 3 Gr Dw development'.146 211 Further, Mr Kostezky pleads that it was not rational, appropriate, and/or possible for him to appeal an adverse determination to the SAT because the SAT had/has no jurisdiction over the '10 metre non-discretionary issue'.147 212 First, Mr Kostezky may not have considered it 'rational' to lodge a development application based on plans he had shared with various planners employed by the City of Joondalup where he had notice (by way of pre-lodgment advice) of the current attitude of the City's planners as to how the City might respond if that application was made. With that indication, he may not have wanted to incur the costs of making an application and then applying to the SAT for review if the application was refused. However, by the provision of that advice he was not 'forced to stop'. 213 The City of Joondalup Local Planning Scheme No 3 has been in force since it was published in the Government Gazette on 23 October 2018 (see cl 2 of the Scheme text),148 replacing the City of Joondalup Local Planning Scheme No 2.149 The contents of the City of Joondalup Local Planning Scheme No 3 includes the deemed provisions (set out in the Planning and Development (Local Planning Schemes) Regulations 145 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 57 - 58. 146 Indorsement of claim to the writ of summons filed on 2 August 2023, par 106. See also pars 108, 139.17, 146, 180.2, 237. 147 Indorsement of claim to the writ of summons filed on 2 August 2023, pars 180.4, 180.4.3, 236. 148 Affidavit of IA Repper affirmed on 5 April 2024, IAR 15. 149 Affidavit of IA Repper affirmed on 5 April 2024, pars 16 - 18, IAR 13, IAR 14. -- 80 of 93 -- [2026] WASC 335 STRK J Page 81 2015 sch 2) including any supplementary deemed provisions outlined in sch A of the scheme text.150 214 The requirement for development approval is found in pt 7 of the deemed provisions, pt 8 concerns applications for development approval, and pt 9 concerns the procedure for dealing with applications for development approval. Clause 76 of the deemed provisions gives an affected person (as defined) the right to apply to the SAT for a review of a reviewable determination, which would relevantly include a determination by the local government to refuse an application for development approval; or to grant development approval subject to conditions.151 215 Section 252(1) of the Planning and Development Act provides an alternative pathway for review to the SAT where under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; a person has applied to the responsible authority for such a grant; and the responsible authority has refused the application, or granted it subject to any condition. 216 Once a review is initiated, the hearing before the SAT will be a hearing de novo. Its purpose will be to produce the correct and preferable decision at the time of the decision upon the review.152 217 Given the concerns raised by Mr Kostezky, I note that even if the SAT does not have jurisdiction to review a decision, it has jurisdiction to form an opinion on whether it has jurisdiction.153 218 Mr Kostezky has and had the right to apply (un-fettered by pre-lodgment advice) to the SAT for review with respect to any development application made to the City of Joondalup upon refusal, or approval subject to conditions. That review might include consideration of the proper interpretation and application of requirements under the applicable scheme, development control policy, and R-Codes. 150 Affidavit of IA Repper affirmed on 5 April 2024, IAR 15 (cl 7(1)(a) of the City of Joondalup Local Planning Scheme No 3, page 154). 151 Clause 76 of the deemed provisions had effect and may be enforced as part of the Scheme at all material times including when the City of Joondalup Local Planning Scheme No 2 was in force; see s 257B of the Planning and Development Act. 152 State Administrative Tribunal Act 2004 (WA) s 27. 153 See Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304; Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 from [17]. -- 81 of 93 -- [2026] WASC 335 STRK J Page 82 219 Similarly, if Mr Kostezky was to make a subdivision application and the WAPC were to refuse to approve a plan for subdivision or approve it subject to conditions opposed by Mr Kostezky, he would have the right to apply to the SAT for review with respect to the same.154 220 Counsel for the WAPC defendants accurately summarised the position. The stance taken by Mr Kostezky and his unwillingness to proceed with an application was, and remains, the cause of the impasse: he simultaneously asserted that the advice he received was wrong, yet also maintained that it would have been 'irrational' for him to take the obvious and necessary course of action that he was advised to take, namely to apply for the required planning approvals and submit his reasoning to the decision maker (and, if necessary, to the SAT on review).155 Absence of requisite mental element 221 As is recorded in Pisano v South Metropolitan Health Service at [59] (which is reproduced at [155] of these reasons), the tort of misfeasance in public office is an intentional (or deliberate) tort. It consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to the plaintiff. The tort has a mental element. While, on the authorities, there is some debate as to the precise limits of the mental element, it is clear that the mental element is satisfied where the public officer engages in the impugned conduct with malice (ie an intention to injure) or knowledge that there is no power to engage in that conduct and that the conduct is calculated to produce injury. It has also been said that reckless indifference as to those matters will suffice as being inconsistent with an honest attempt to perform the functions of a public office. So understood, the tort is concerned with conduct which is properly characterised as an abuse of office and with the results of that conduct. 222 The elements of the tort have been carefully crafted to ensure that they do not encompass the negligent or unintentional acts or omissions of a public official. 223 It is submitted on behalf of the WAPC defendants that it is not necessary for the court to determine whether or not a public function or 154 Planning and Development Act, s 252. 155 WAPC defendants' outline of submissions filed on 17 May 2024, par 35. -- 82 of 93 -- [2026] WASC 335 STRK J Page 83 a public power was being exercised by the officers who gave the advice to Mr Kostezky - because it is clear and apparent that any power to give advice was one that was not misused, and certainly not misused with any of the relevant intention elements to found the tort of misfeasance.156 224 It is also submitted on behalf of the CoJ defendants (in the alternative to their complaint that there was no exercise of public power incidental to public office) that when regard is had to the communications impugned by Mr Kostezky, that the allegations that Ms Page and Mr Cook were actuated by malice and did not act in good faith are so obviously untenable that they cannot possibly succeed.157 225 I have proceeded with caution when considering this basis for summary judgment or strike out. 226 However, after careful review of the pleaded interactions with Ms Page, Mr Leigh, Ms McGowan, Mr Cook and Mr Ellenbroek (which are outlined above), and the affidavits filed, I find that there is no tenable basis for the plea that their impugned acts were committed with the requisite state of mind both in committing the act and in holding the requisite intention to cause the loss or damage that is alleged to flow from the impugned act. The conduct pleaded by Mr Kostezky cannot ground the alleged mental element. The allegations are inherently incredible and cannot succeed. Whether there is a need to determine preliminary issues 227 Mr Kostezky also maintains that there are a number of issues that the court ought determine or resolve as preliminary issues before trial, and as they are matters of importance, his claims ought not be struck out.158 As to his claim against the CoJ defendants, Mr Kostezky frames the preliminary issues as follows:159 23.1. Was the insertion by the CoJ into the R Codes, of clause C 1.5 as a deemed to comply (DTC) condition without a complimenting planning principle(s), lawful? 23.2. Does the COJ have discretion in relation to the DTC condition 10 metre rule? 156 ts 79 (10 October 2024). 157 CoJ defendants' outline of submissions filed on 17 May 2024, par 19(a). 158 ts 36 - 37 (10 October 2024). 159 Mr Kostezky's outline of submissions filed in opposition to the application of the CoJ defendants on 5 July 2024, par 23. -- 83 of 93 -- [2026] WASC 335 STRK J Page 84 23.3. Does the SAT have jurisdiction in non-discretionary town planning matters? 23.4. Does the Development Control Policy 2.2 mandate that all lots be of 'regular' shape 23.5. Is plaintiff's development a 3 grouped dwelling development or creation of a vacant lot 23.6. Is the CoJ or WAPC decision maker for development such as the plaintiff's 3 Gr Dw Development. 23.7. Did the plaintiff have a right to rely on the advice of the CoJ and/or the WAPC defendants? 23.8. Was it rational for the plaintiff not to lodge the CoJ or the WAPC development and/or subdivision application? 23.8.1. Because of advice of the CoJ and the confirmation of it by the WAPC. 23.8.2. Because the WAPC had delegated its powers to the CoJ 23.8.3. Because of his perception that the COJ and WAPC were bent on resisting him all the way. 23.9. What is the lawful status of advice given in writing or 'across the counter' by a public officer to a body or person about a matter? 23.10. What is the lawful status of the referral of the plaintiff's complaint to the CCC by the WAPC? 23.11. When is it appropriate to keep a dossier of a person's character in a town planning context? 228 As to his claim against the WAPC defendants, Mr Kostezky frames the preliminary issues in almost identical terms.160 229 First, I note that it is not the case that the issues identified above would all need to be determined in a trial of this action for misfeasance in public office. 230 Secondly, the claims for misfeasance in public office as pleaded are untenable. The pleaded claim cannot survive an otherwise compelling application for summary judgment or strike out by reason 160 Mr Kostezky's outline of submissions filed in opposition to the application of the WAPC defendants on 5 July 2024, par 24. -- 84 of 93 -- [2026] WASC 335 STRK J Page 85 of there being matters with respect to which Mr Kostezky would like the benefit of judicial advice before making an application for development approval or subdivision. The proper vehicle for resolution of many of the questions held by Mr Kostezky is the making of an application for development or subdivision approval. Additional issues 231 There are a number of additional difficulties with Mr Kostezky's pleadings concerning the cause of action for misfeasance in public office. I particularly note the following. Vicarious liability 232 The 'essence of misfeasance in public office that the officer either maliciously (with the intention of injuring the plaintiff) uses his, her or its power or, alternatively, knowingly acts in excess of that power'.161 While the tort of misfeasance in public office is the tort of an individual public officer, for which he or she is personally liable, the officer's employer may be vicariously liable if it authorised the officer's conduct.162 233 I understand that at all relevant times, Ms Page and Mr Leigh to have been employees of the City of Joondalup; and Ms McGowan, Mr Cook and Mr Ellenbroek to have been employees of the State of Western Australia. 234 Mr Kostezky's pleading with respect to the City of Joondalup does no more than assert at paragraph 8 that '[t]he City of Joondalup is a Local Government and is vicariously liable for the actions, including failure to act, of the CoJ Public Officer Defendants.' As to the State of Western Australia and the WAPC, Mr Kostezky pleads at paragraph 9 that it 'is an agent of the State Government of Western Australia, and both are vicariously liable for the actions including failure to act, of defendants Gail McGowan, Mr Cook and Mr Ellenbroek.' Mr Kostezky does not otherwise plead authorisation of conduct, or otherwise articulate the basis for his claim against the first, fourth and fifth defendants. 235 The basis upon which it is alleged that they are vicariously liable in respect of any tort committed by an officer is not properly pleaded. It 161 Nyoni v Shire of Kellerberrin [81] (North & Rares JJ). 162 Northern Territory of Australia v Mengel (329); Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572, 587; Moder v Commonwealth of Australia [2012] QCA 92; (2012) 261 FLR 396 [70], cited in Farah Custodians Pty Limited v Commissioner of Taxation [2018] FCA 1185 [107]. -- 85 of 93 -- [2026] WASC 335 STRK J Page 86 is not pleaded that any particular tortious conduct by any officer was authorised by the first, fourth or fifth defendants, or that there was any de facto authorisation of any such conduct.163 Nor are any facts pleaded which would be capable of supporting an allegation that any of the alleged conduct, including bad faith on the part of the officers, was authorised, de facto or de jure, by the first, fourth or fifth defendants.164 Composite conduct 236 At paragraph 4 of the indorsement, Mr Kostezky claims that he suffered damage, 'caused by the inseparable interwoven actions of' Ms Page, Mr Leigh, Ms McGowan, Mr Cook and Mr Ellenbroek.165 237 In his submissions, Mr Kostezky says that his claim arises in circumstances where there has been 'improper inter related and convoluted conduct of all of the defendants'.166 Further, he submits that to make his claims of misfeasance, the whole story must be considered and how everything fits together.167 238 Mr Kostezky has separately pleaded claims against Ms Page, Mr Leigh, Ms McGowan, Mr Cook and Mr Ellenbroek (as described in these reasons and summarised above). When regard is had to the pleadings and the submission made, it is not clear as to whether Mr Kostezky suggests that misfeasance in public office can be built upon a foundation that is a composite of the conduct of a number of individual officers or the aggregating of the acts and knowledge of various officers. If that was the intention, then it is necessary to record that liability for the tort cannot be so established.168 The nature of the tort of misfeasance in public office means that the mental and physical 163 Farah Custodians Pty Limited v Commissioner of Taxation [135], citing Northern Territory of Australia v Mengel (347); Rogers v Legal Services Commission of South Australia (587); Moder v Commonwealth of Australia [70]. 164 Farah Custodians Pty Limited v Commissioner of Taxation [135]. 165 Indorsement of claim to the writ of summons filed on 2 August 2023, par 4. 166 Mr Kostezky's outline of submissions filed in opposition to the application of the CoJ defendants on 5 July 2024, par 8; Mr Kostezky's outline of submissions filed in opposition to the application of the WAPC defendants on 5 July 2024, par 8. 167 ts 46 - 47 (10 October 2024). 168 Farah Custodians Pty Limited v Commissioner of Taxation [108], citing Leinenga v Logan City Council [66]; Chapel Road Pty Ltd v Australian Securities and Investments Commission (No 10) [2014] NSWSC 346; (2014) 307 ALR 428 [77]; Deputy Commissioner of Taxation v Frangieh (No 3) [2017] NSWSC 252; (2017) 321 FLR 1 [117]; Moder v Commonwealth of Australia [73]; MJL v The State of Western Australia [2015] WASC 348 [87]. -- 86 of 93 -- [2026] WASC 335 STRK J Page 87 elements of the tort ought to coalesce in one individual.169 The applications cannot be resisted on such a basis. 239 While not the subject of express complaint by the defendants in support of their applications, I also note that the way in which Mr Kostezky has pleaded the necessary element of damage appears to suffer from reference to and reliance upon composite of the conduct of a number of individual officers. His claim for general damages for 'shock, intimidation and humiliation' would also be liable to be struck out.170 Should leave to replead be granted 240 I am cognisant that summary judgment ought be granted only where it is clear there is no real question to be tried, and that strike out was pressed in the alternative. 241 I have considered whether all the claims against all defendants were so clearly untenable that they could not possibly succeed at a trial in the ordinary way, or whether it would be appropriate to strike out only some claims, or some parts of the pleading, and grant Mr Kostezky leave to reformulate and re-plead his claim based on misfeasance in public office against some or all defendants. The court has the discretion to approach the applications in such a way. 242 Having given the matter careful consideration, I consider the problems with the claims (particularly those on which the defendants addressed in the course of the application) to be substantial and fundamental, not pleading errors which can be readily remedied, or matters of detail or further particularisation. Conclusion and orders 243 For these reason, the applications are made out on each of the alternative bases prosecuted (summary judgment, inherent jurisdiction and strike out). The question of whether it might be more efficient to grant summary judgment or to strike out paragraphs of the indorsement to the writ was answered by both the CoJ defendants and the WAPC defendants succeeding in their respective applications. Summary judgment will be entered against Mr Kostezky in favour of the CoJ defendants and the WAPC defendants. 169 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53; [2013] 2 NZLR 679 [97]. 170 Nyoni v Shire of Kellerberrin [97]. -- 87 of 93 -- [2026] WASC 335 STRK J Page 88 244 I note that both the CoJ defendants and the WAPC defendants press for the costs of their respective applications and the proceeding. I will hear the parties as to costs. -- 88 of 93 -- [2026] WASC 335 STRK J Page 89 Sch A - cl 4.3.4 and cl 4.3.5 4.3.4 Within areas where a dual code applies as depicted on the R- Code map, the base R20 density code shall apply, unless it is determined that the higher code is acceptable having regard to clause 4.3.5. 4.3.5 Clause 5.1.1 of the R-Codes is modified by inserting the additional 'deemed-to-comply' criteria: C1.5 In areas where dual coding applies, site areas under the higher coding may be applied subject to the following: (i) Development which complies with a minimum site width of 10 metres at the street boundary, with the exception of multiple dwelling sites; or (ii) Development of multiple dwelling sites which complies with a minimum site width of 20 metres at the street boundary. -- 89 of 93 -- [2026] WASC 335 STRK J Page 90 Sch B - Mr Kostezky's claim for damages -- 90 of 93 -- [2026] WASC 335 STRK J Page 91 -- 91 of 93 -- [2026] WASC 335 STRK J Page 92 -- 92 of 93 -- [2026] WASC 335 STRK J Page 93 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CR Associate to the Hon Justice Strk 14 AUGUST 2026 -- 93 of 93 --