Collective decision making - Assessment Panel Member notes

The owner of the Pullman Hotel on Hindmarsh Square recently instituted judicial review proceedings in the Supreme Court challenging a decision of the State Planning Commission via its delegate, SCAP, to grant planning consent for a 16-storey student accommodation building abutting the Pullman Hotel.

The proceedings sought to argue that SCAP contravened its general duties under s15 of the Planning, Development and Infrastructure Act by denying the applicant an opportunity to communicate its concerns about the development application; considering the development in private and failing to give reasons for its decision. 

The recent judgment issued by the Supreme Court (20 Hindmarsh Square Pty Ltd v State Planning Commission & Anor. [2026] SASC 72) related to interlocutory applications where orders were sought that SCAP discover and produce all documents which were directly relevant to the issues arising in the proceedings, and in particular, any notes made by any member of the SCAP.  The application for discovery of the notes of individual SCAP members was opposed, primarily on the basis that it had not been demonstrated that these were relevant to, or would assist in establishing any of the review grounds, nor that the reasons for SCAP’s approval decision could be inferred from the notes of individual members.  It was acknowledged that three of the five SCAP members had kept notes of the relevant meeting.

While the Pullman Hotel owner accepted that there was no automatic entitlement to discovery, it submitted that where the decision maker had not provided reasons for its decision, discovery was warranted, particularly where the legislation governing the conduct of the decision maker made it clear that transparency, even-handedness and accountability are important. 

SCAP opposed the application for discovery, arguing that the subjective reasoning process of some (but not all) of the members of the SCAP would not be helpful in the hearing of the judicial review application, where the Court was required to assess the decision-making process of a multi‑member expert panel. It argued that, to succeed in the judicial review application, the Pullman Hotel owner had to demonstrate that the SCAP’s decision was tainted by errors of law or by jurisdictional error. It was further argued that such proceedings were not an avenue by which the Pullman Hotel owner could challenge the merits of the decision having been made by the five SCAP members who were present at the meeting, utilising their professional skills and expertise as part of a collective decision making process.  It was further contended, and ultimately accepted by the Court, that the subjective reasoning of individual members was not relevant when determining whether the SCAP took into account all mandatory considerations and did not take into account irrelevant considerations.  Such matters are to be determined on an objective basis.

In dismissing the application for discovery, the Court emphasised that while it was entitled to draw inferences as to the reasoning of SCAP, any such inferences must be based upon the objective evidence.  In that regard, the Supreme Court said:

“I do not consider that the notes are objective evidence of deliberations of the SCAP, nor do I consider that they are materials that were before the SCAP at any time.  They are the subjective notes made by individuals for their own use to assist in their own consideration and analysis of the application.  They were not prepared for the purpose of advising other members; they were not prepared to assist any person other than the person who made them; nor were they prepared as a draft or aid memoire in the production of the minutes of the meeting.  To suggest that they can in any way elucidate the decision-making process of the SCAP is to overstate their significance; indeed such a suggestion is based on an assumption that the notes comprehensively and completely capture all of the deliberations and discussion conducted by the SCAP.  There is no evidentiary basis for such an assumption.”

While there may have previously been some reluctance on the part of Assessment Panel Members to keep detailed notes in relation to the assessment of any application, this judgment provides some degree of comfort for that practice to continue without fear of exposing a decision of the Assessment Panel to challenge by way of judicial review.

For more specific information on any of the material contained in this article please contact Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au