Cambria Green Agriculture & Tourism Management Pty Ltd v Attorney-General
[2021] TASFC 8
•3 June 2021
[2021] TASFC 8
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | Cambria Green Agriculture & Tourism Management Pty Ltd |
| v Attorney-General [2021] TASFC 8 | |
| PARTIES: | CAMBRIA GREEN AGRICULTURE & TOURISM MANAGEMENT PTY LTD CAMBRIA GREEN AGRICULTURE DEVELOPMENT PTY LTD STAR GREEN AGRICULTURE DEVELOPMENT LTD EMPEROR SHUN GREEN AGRICULTURE DEVELOPMENT LTD MOON GREEN AGRICULTURE DEVELOPMENT LTD EMPEROR YUE GREEN AGRICULTURE DEVELOPMENT LTD SHENGLONG HONG KONG INVESTMENT LTD SUN GREEN AGRICULTURE DEVELOPMENT LTD SIU LAM SUEN LIU KEJING |
| v | |
| THE HONOURABLE ELISE ARCHER, ATTORNEY-GENERAL FOR TASMANIA | |
| FILE NO: | FCA 3005/2020 |
| JUDGMENT | |
| APPEALED FROM: | Cambria Green Agriculture & Tourism Management Pty Ltd |
| v Tasmanian Planning Commission [2020] TASSC 58 | |
| DELIVERED ON: | 3 June 2021 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 21 April 2021 |
| JUDGMENT OF: | Blow CJ, Brett J, Marshall AJ |
| CATCHWORDS: |
Procedure – Civil proceedings in State and Territory courts – Costs – Depriving successful party of costs – Other cases – Other cases – Costs of successful application to quash decision of statutory authority – Better evidence presented on application for prerogative relief – Attorney-General acted as contradictor – Order that applicants pay Attorney-General's costs on an indemnity basis quashed – Each party to pay
own costs.
Supreme Court Civil Procedure Act 1932 (Tas), s 12(2).
Supreme Court Rules 2000 (Tas), r 57.
Northern Territory v Sangare [2019] HCA 25, 265 CLR 164; Hamod v State of New South Wales [2002] FCAFC
97, 188 ALR 659; Morad v El-Ashey (No 2) [2017] FCA 1612; Zibara v Ultra Management (Sports) Pty Ltd
[2021] FCAFC 4, referred to.
Aust Dig Procedure [1571]
REPRESENTATION:
Counsel:
Appellants: S B McElwaine SC Respondent: M E O'Farrell SC
Solicitors:
Appellant: Shaun McElwaine + Associates Respondent: Solicitor-General
| Judgment Number: | [2021] TASFC 8 |
| Number of paragraphs: | 46 |
Serial No 8/2021
File No FCA 3005/2020
CAMBRIA GREEN AGRICULTURE & TOURISM MANAGEMENT PTY LTD
CAMBRIA GREEN AGRICULTURE DEVELOPMENT PTY LTD
STAR GREEN AGRICULTURE DEVELOPMENT LTD, EMPEROR SHUN GREEN
AGRICULTURE DEVELOPMENT LTD, MOON GREEN AGRICULTURE
DEVELOPMENT LTD, EMPEROR YUE GREEN AGRICULTURE
DEVELOPMENT LTD, SHENGLONG HONG KONG INVESTMENT LTD, SUN
GREEN AGRICULTURE DEVELOPMENT LTD, SIU LAM SUEN,
LIU KEJINGG v THE HONOURABLE ELISE ARCHER,
ATTORNEY-GENERAL FOR TASMANIA
| REASONS FOR JUDGMENT | FULL COURT BLOW CJ BRETT J MARSHALL AJ 3 June 2021 |
| Orders of the Court: |
1 Appeal allowed.
2 Order for costs quashed.
Serial No 8/2021
File No FCA 3005/2020
CAMBRIA GREEN AGRICULTURE & TOURISM MANAGEMENT PTY LTD
CAMBRIA GREEN AGRICULTURE DEVELOPMENT PTY LTD
STAR GREEN AGRICULTURE DEVELOPMENT LTD, EMPEROR SHUN GREEN
AGRICULTURE DEVELOPMENT LTD, MOON GREEN AGRICULTURE
DEVELOPMENT LTD, EMPEROR YUE GREEN AGRICULTURE
DEVELOPMENT LTD, SHENGLONG HONG KONG INVESTMENT LTD, SUN
GREEN AGRICULTURE DEVELOPMENT LTD, SIU LAM SUEN,
LIU KEJINGG v THE HONOURABLE ELISE ARCHER,
ATTORNEY-GENERAL FOR TASMANIA
| REASONS FOR JUDGMENT | FULL COURT BLOW CJ 3 June 2021 |
1 I agree with Brett J.
2 No 8/2021
File No FCA 3005/2020
CAMBRIA GREEN AGRICULTURE & TOURISM MANAGEMENT PTY LTD
CAMBRIA GREEN AGRICULTURE DEVELOPMENT PTY LTD
STAR GREEN AGRICULTURE DEVELOPMENT LTD, EMPEROR SHUN GREEN
AGRICULTURE DEVELOPMENT LTD, MOON GREEN AGRICULTURE
DEVELOPMENT LTD, EMPEROR YUE GREEN AGRICULTURE
DEVELOPMENT LTD, SHENGLONG HONG KONG INVESTMENT LTD, SUN
GREEN AGRICULTURE DEVELOPMENT LTD, SIU LAM SUEN,
LIU KEJINGG v THE HONOURABLE ELISE ARCHER,
ATTORNEY-GENERAL FOR TASMANIA
| REASONS FOR JUDGMENT | FULL COURT BRETT J 3 June 2021 |
2 On 19 March 2018, the first named appellant ("Cambria Green") commenced the process of seeking an amendment of the relevant planning scheme, for the purpose of facilitating the development of a large scale tourism operation on a parcel of land at Swansea known as Cambria Estate. The land was comprised of 12 separate titles. Each appellant owns a separate block within that parcel.
3 Ultimately, the amendment required the approval of the Tasmanian Planning Commission ("the TPC"). A number of persons made representations to the TPC opposing the amendment. Some of the representations raised the question of the jurisdiction of the TPC to approve the amendment, on the basis of concerns about whether a number of the corporate appellants had properly consented to the application for the amendment. On 22 November 2019, after conducting a hearing limited to that question, the TPC decided that it did not have jurisdiction to determine the amendment. That decision was based on its rejection of evidence presented by the appellants to establish lawful consent by each appellant to the application. The appellants then sought relief from the Supreme Court in the nature of certiorari on grounds which included an assertion that the TPC had incorrectly determined some essential jurisdictional facts. The TPC and all other parties who had appeared at the hearing submitted to the decision of the Court, but the Attorney-General joined as a party to act as contradictor. On 3 December 2020, Estcourt J upheld the appellants' claim and granted the relief sought, which included quashing the determination of the TPC and making declarations consistent with the required jurisdictional facts. His Honour decided that the TPC had been justified in reaching its decision on the basis of the evidence presented to it, but was persuaded to grant relief because of further evidence presented at the hearing before the Supreme Court. After announcing his decision on the substantive issue, the learned primary judge ordered that the appellants pay the respondent's costs on an indemnity basis. It is common ground that this was a reference to full indemnity, that is costs assessed on a solicitor and client basis, rather than the partial indemnity achieved by taxation of costs on a party and party basis. The respondent had sought an order for costs, but did not specifically ask that they be awarded on a full indemnity basis. The reason expressed by the judge for making that order was that the appellants ought to have foreseen the need for the further evidence, and presented same to the TPC at the original hearing, hence avoiding the need for the proceedings in the Supreme Court. The appellants have now appealed to this Court from that costs decision.
Background
4 The process for amending a planning scheme was, at the relevant time, prescribed by Division 2 of the Land Use Planning and Approvals Act 1993 ("the LUPA Act"). By s 33(1), the process is initiated by a person requesting a planning authority to make the amendment. Upon such a request, the planning
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authority must, within the prescribed time, decide whether or not to initiate the amendment. If it decides to do so, it is required to prepare and certify a draft amendment, and submit same to the TPC. The consequent process before the TPC, which is prescribed in subsequent provisions, includes public exhibition, the opportunity for the public to make representations about the amendment, and consideration of those representations prior to making a decision as to whether to approve the draft amendment. The TPC is required to conduct a hearing to consider the draft amendment and the representations, although it has the power to dispense with a hearing in certain circumstances.
5 In this case, the request to amend the planning scheme was made by letter to the planning authority from a planner, Ms Welch, of Ireninc Planning and Urban Design, who purported to be "writing on behalf of our client Cambria Green Agricultural & Tourism Management Pty Ltd". It is apparent that the planning authority decided to initiate the amendment, prepared the draft and followed the prescribed process which culminated in the submission of the draft to the TPC. The TPC then, as it was required to do by s 38, arranged for public exhibition of the draft amendment. It received a number of representations.
6 Some of the representations raised concerns in respect of landowner consent to the initial request for the amendment. The consent of the owners of the land to which the amendment applies is dealt with by s 33(2A). The relevant provisions of s 33 are as follows:
"(1) A person may request a planning authority to amend a planning scheme
administered by it.
...
(2A) If a request under subsection (1) is in respect of one parcel or several parcels
of land covered by the planning scheme and is requested by a person who is not the
owner of the land to which the proposed amendment applies, the request must be –
(a) signed by the owner or owners of the land; or (b) accompanied by the written permission of the owner or owners to the making of the request."
7 The letter from Ms Welch which contained the original request for the amendment, had enclosed a number of documents which purported to be the relevant consent of each appellant. The documents were in the same form, and the signature was in the nature of what appears to be Chinese characters. The signatures appeared identical. The concerns raised by the representors related to the identity of the person or persons who had signed the consent letters, and their authority to do so on behalf of the corporate landowners.
8 The TPC's approach to these representations was that they raised a question in respect of its jurisdiction to entertain and ultimately approve the draft amendment. The TPC determined that the requirements of s 33(2A) constituted a necessary precondition of that jurisdiction. Hence, it was of the view that if there was non-compliance with s 33(2A), it would be "without jurisdiction to hear the draft amendment". It seems that this view has been assumed as correct by all parties in the subsequent proceedings. It is not a question which is fundamental to the determination of this appeal, and I do not intend to express a view about the correctness of the TPC's approach. It is sufficient to proceed on the assumption that the TPC correctly so decided.
9 After a lengthy course of correspondence between the solicitor for the appellants and the Chair of the TPC, Ms A Cunningham, and a directions hearing, the TPC convened a substantive hearing in respect of the jurisdictional issues on 30 August 2019. The appellants were collectively represented by Mr McElwaine SC, and several representors appeared without representation. The only evidence at the hearing was presented by the appellants. It consisted of two unsworn witness statements by Ronald Hu,
4 No 8/2021
together with further documentary evidence, including company extracts. In his first witness statement,
Mr Hu asserted the following:
He and Mr Liu Kejing are directors of Cambria Green. Mr Kejing is the holder of all issued shares
in the company. Mr Kejing is the only director and is the controller of each of the other corporate landowners.
Mr Kejing is also an owner in his individual capacity of one of the other blocks. Cambria Green is an Australian registered corporation that acts as agent for each of the other
corporations. Those corporations are each registered in Hong Kong. Mr Hu has the authority of each of the foreign corporations and Mr Kejing to make the witness
statement. Each consent form was signed by Mr Kejing with the authority of each company. 10 In the second witness statement, Mr Hu asserted as follows:
Mr Hu corrected information contained in his first statement in respect of Mr Kejing's involvement in one of the landowner corporations, Shenglong Hong Kong Investment Ltd. The company records show that there are two directors of that company, Mr Kejing and Mr Li Lihua. Mr Kejing holds 1,000 shares and Mr Lihau 9,000 in that company. Otherwise, the statements made in his first statement in respect of the other foreign corporations are correct. Mr Hu had inquired of both Mr Lihua and Mr Kejing "as to whether Mr Liu Kejing had authority to act as agent of that company to provide the landowner consent". He was informed by both that Mr Lihua "gave his full authority to Mr Liu Kejing to act on behalf of the company and its land dealings in Australia and in particular to provide any document necessary for the purposes of the rezoning application". Mr Hu confirmed that Mr Kejing had his authority as director of Cambria Green to sign the
landowner consent form. Mr Hu again confirmed that Cambria Green had been authorised by each of the foreign corporations
to act as their agent in respect of the rezoning application.11 In unsworn oral evidence, Mr Hu confirmed the accuracy, in relevant respects, of his witness statements. The information in those statements concerning the identity of the directors and shareholders of each company were substantially in accordance with the company extracts presented at the hearing.
12 On the basis of this evidence, Mr McElwaine argued to the TPC that the provisions of s 33(2A) of the LUPA Act were not applicable to the proposed amendment because the request had in fact been made by each owner of the land. It was submitted that the evidence of Mr Hu established that Cambria Green had acted as the agent of each landowner in respect of the request and, accordingly, the act of Cambria Green was the act of the relevant landowner. Mr McElwaine relied upon the general principles of the law of agency in that regard. It was further submitted that, in any event, Mr Hu's evidence established that each landowner had provided the written consent necessary to satisfy the requirements of s 33(2A).
13 None of the representors gave or submitted evidence at the hearing. However, each was permitted to, and several did, cross-examine Mr Hu. It is apparent from reading the transcript that the cross-examination was somewhat disorderly and not satisfactorily controlled by the Chair. It often ventured into matters which were clearly irrelevant. However, there was some cross-examination concerning Mr Hu's direct knowledge of the identity of the signatory of each of the landowner consent
5 No 8/2021
forms and Mr Hu's direct knowledge of the authority of that person to sign those forms on behalf of the
relevant company.14 The TPC ultimately determined that "on the basis of the evidence before it that the requirements of s 33(2A) are not met and therefore it does not have jurisdiction to determine the draft amendment". Its reasoning was substantially predicated on its refusal to accept Mr Hu as a credible and reliable witness. It noted on a number of occasions that his evidence was unsworn and not supported or verified by other evidence. It also noted that in some respects, his evidence was based on hearsay. Some particular aspects of the TPC's reasoning are as follows:
In respect of the agency argument, the TPC was not satisfied "on the basis of Mr Hu's unsworn statement" that Cambria Green acted "as the agent of each of the….corporations". It noted that
Mr Hu had not explained the basis of this statement and that his evidence was not verified by "documentary evidence in the form of company constitutions, company resolutions, minutes of appointment or authority or statutory declarations of any of the directors to this effect". It rejected an argument that agency could be inferred from the original letter from Ireneinc.
On the question of the landowner consent forms, the TPC was particularly concerned about Mr Hu's evidence in respect of two issues. The first was his evidence that he had confirmed with Mr Li Lihua that he authorised the signing of the consent form. It found Mr Hu's evidence about the directorship of this company "misleading and not credible". It further found his evidence with respect to his conversation with Mr Li Lihua "misleading and unreliable and therefore of little if any weight". Ultimately, the TPC was not satisfied that Mr Li Lihua had been aware that the consent form was to be signed, before it was signed. It noted that evidence could have been provided by way of statutory declaration from the directors of the company, and that in the absence of such evidence "the TPC is not satisfied that Mr Kejing Liu had authority to sign the consent letter on behalf of Shenglong Hong Kong Investment Ltd and finds that s 33(2A) is not met in this case". The second concern was in respect of the authority of Mr Kejing to sign a consent letter on behalf of Cambria Green. The reasoning of the TPC with respect to this matter is somewhat elusive, given that the other director is Mr Hu and he confirmed that he had given Mr Kejing the relevant authority, and in any event, the request was made by Cambria Green, not the individuals. Notwithstanding this evidence, the TPC concluded that it was not persuaded "on the basis of Mr Hu's oral evidence ... that Mr Kejing Liu was given the necessary authority to sign the landowner consent form on behalf of Cambria Green". It found his evidence to be "defensive, evasive and not credible". This conclusion seems to have been based upon cross-examination by one or more of the representors which had focussed on Mr Hu's understanding of the general principles of law of agency. It is not entirely clear to me how this cross-examination was relevant to the issue of whether Cambria Green consented to the amendment, and why the TPC considered that it was relevant to the discharge of its statutory functions to examine the internal corporate processes which led to a clear and unequivocal act by the company, that is to instruct the planner to request the amendment. However, it seems to have been regarded by the TPC as a matter of importance. 15 In due course, the appellants obtained a general order to show cause why relief in the nature of certiorari should not be granted to quash the TPC's decision. Declaratory relief was also sought. The return of the general order came before Estcourt J on 30 November 2020. Prior to that hearing, the appellants had filed affidavits by Mr Kejing which confirmed the truth and accuracy of the information which Mr Hu had provided in evidence to the TPC. In particular, Mr Kejing confirmed that Cambria Green was registered in Australia for the purpose of managing the proposed development, and that Mr Hu, as a director of that company and a resident of Australia, was the person "who had the day to day responsibility for the management of the Cambria Development including obtaining a rezoning of the land". He noted and enclosed a power of attorney in favour of Mr Hu in that regard, and confirmed that Mr Hu had the authority "on behalf of each of the landowners to act for them in relation to the
6 No 8/2021
proposed development of the Cambria properties". He confirmed that he is the "controlling mind of each of the corporate landowners", and the owner of three of the titles and that the rezoning application had been lodged with his authority.
16 On 3 December 2020 the learned primary judge quashed the TPC decision and declared that Cambria Green acted as agent of each of the landowners in respect of the request for the amendment. In his reasons, his Honour accepted Mr McElwaine's submissions that Mr Hu's evidence, if accepted, established an agency relationship between Cambria Green and the other landowners in respect of the request, and that this rendered unnecessary the landowner consents required by s 33(2A). He also accepted Mr McElwaine's submission that, in any event, Mr Hu's evidence had established the existence of the requisite landowner consents. However, his Honour also noted that "there was cross-examination of Mr Hu before the TPC which could properly have left the members justifiably feeling something less than comfortably satisfied on the issue of Mr Hu's agency". He was not satisfied that the TPC had committed jurisdictional error in its determination. His Honour accepted these questions are properly characterised as jurisdictional facts and, accordingly, accepted that he could entertain the further evidence of Mr Kejing. On the basis of that evidence, he was prepared to uphold grounds which asserted that the TPC had erred in law by failing to make the correct jurisdictional fact findings.
17 I pause to observe that the fresh evidence presented to the primary judge did not deal with the attitude of Mr Li Lihua in respect of the consent of Shenglong Hong Kong Investment Ltd, nor address in any way the issues which concerned the TPC in respect of this question. I note that this was a significant factor in the formation of the attitude of the TPC to the credibility of Mr Hu's evidence generally. Despite this, the respondent accepted and the primary judge found that the new evidence established the requisite jurisdictional facts.
18 His Honour considered that it was unnecessary for him to consider the remaining grounds of the general order. He then made the impugned costs order. His reasons for doing so are expressed in a single paragraph:
"[26] As to the question of costs, I am satisfied on the material before me that the applicants ought to have been aware of the issue of landowner consent being raised before the TPC, and should have filed a proof of evidence, or even a statutory declaration, detailing the material contained in the affidavit of Mr Kejing read before me. As a result I order that the applicants pay the Attorney-General's costs of and incidental to these proceedings on an indemnity basis."
19 The appeal to this Court relates to the exercise of the costs discretion generally by the primary judge. The appellants ask this Court to set aside the order for costs in its entirety, and replace it with an order that the respondent pay the appellants' costs of the proceedings before the primary judge on a party and party basis. The grounds relied upon are:
"1
He denied procedural fairness to the appellants in that the respondent did not make application for an indemnity costs order in her favour and no opportunity was afforded to the appellants to put submissions or to rely upon evidence as to why the making of an indemnity costs order was not justified in the circumstances of the proceeding before his Honour; and/or
2
He accepted the submission put for the respondent that a relevant matter in the exercise of the costs discretion was whether new evidence that was put before the Court could and should have been put before the Tasmanian Planning TPC but then failed to determine ground 5.6 of the General Order to Show Cause. Had his Honour resolved that ground favourably to the appellants then, logically, his Honour ought to have concluded that a material reason why the appellants did not adduce further evidence at the hearing before the Tasmanian Planning TPC was that the TPC acted contrary to its statutory obligation to afford procedural fairness in the matter in which it conducted the hearing. Further, had his Honour resolved
7 No 8/2021
ground 5.6 in favour of the appellants, then he would not have concluded as he did at paragraph [19] of the reasons that the delegates were justified in rejecting the evidence of Mr Hu. Accordingly, his Honour failed to take into account a material matter relevant to the exercise of the costs discretion."
20 At the hearing of the appeal, it was accepted by the Solicitor General that there had been a material denial of procedural fairness in respect of the indemnity costs order. This concession is clearly appropriate. The respondent had sought an order for costs in conjunction with the discharge of the general order. In other words, it had sought a costs order on the usual basis that costs should follow the event. It had not sought an order for costs even if the relief sought by the appellants was granted, and no mention at all had been made of a costs order on any basis other than the normal party and party assessment. The primary judge had not given the appellants notice that he was contemplating making such an order. During the course of discussion with the respondent's counsel at the hearing, his Honour made a comment that suggested that one resolution of the matter might be to grant relief but that "they [the appellants] should be penalised for costs". There was nothing else said that would have alerted the appellants to the fact that the primary judge was contemplating making the impugned order. Indeed, there had not been any other discussion about the question of costs at all prior to the pronouncement of that order.
21 The concession by the Solicitor General makes it inevitable that the appeal will succeed, on the basis of the complaint made in ground 1. However, what follows from this Court upholding the appeal on that basis warrants consideration. If the appeal is only upheld for that reason, then the issue of the costs of the proceedings before the primary judge will need to be determined afresh, either on remitter to the primary judge or by this Court. The parties were agreed that this Court should determine that question. It is noted that this Court has before it all the materials that were before the learned primary judge.
22 Further, it will be necessary to determine whether ground 2 has merit. Mr McElwaine's argument is that if ground 2 is upheld, then the appropriate costs order in respect of the proceedings before the primary judge would be the usual order that costs follow the event. In that circumstance, the question of an indemnity costs order against the appellants would simply not arise.
23 Accordingly, it is convenient to consider ground 2 before re-determining the question of costs.
| Ground 2 |
24 The assertion upon which ground 2 is predicated, that the primary judge did not determine ground 5.6 of the general order, is clearly correct. His Honour expressly stated that, having determined grounds 5.1 and 5.2, it was unnecessary to consider any of the remaining grounds.
25 Ground 5.6 is in the following terms:
"5.6 The respondent committed jurisdictional error in the conduct of the hearing that
led to the making of the Decision in that it failed observe the rules of natural justice
as required by s 10(1)(b)(v) of the Tasmanian Planning TPC Act 1997 as follows:
(a)
it did not exercise the power (or afford the opportunity) to require that the evidence of Mr Ronald Hu be taken on oath or affirmation but then rejected his evidence for the reason that it was either 'unsworn' or 'unverified';
(b)
it failed to warn any of the applicants or Mr Ronald Hu that evidence presented to it at the hearing by the applicants which was not sworn, affirmed or otherwise 'verified' would not, may not or might not be accepted by it as truthful, persuasive or credible;
(c)
it failed to warn any of the applicants or Mr Ronald Hu that the corporate records presented in evidence to it on behalf of the applicants would not be
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accepted as correct and or would not be given weight unless those records
were 'verified'."
26 The Tribunal did not, as a matter of fact, require the evidence of Mr Hu to be taken on oath or affirmation, nor warn the appellants that it was contemplating not accepting nor acting upon the evidence of Mr Hu. In my view, the TPC can be fairly criticised for failing to ask for verification of relevant aspects of Mr Hu's evidence before determining the jurisdictional issue. It is clear enough from the relevant provisions of the Tasmanian Planning Commission Act 1997, under which the TPC is established, that when it conducts a hearing, it is performing a function which is administrative and essentially inquisitorial. Under s10, it may, inter alia, inform itself about any matter in any way it thinks fit, consult with such persons as it thinks fit, and is not bound by the rules of evidence. There was no bar to making such enquiry, and to do so would have been obviously desirable in the interests of administrative efficiency, and consistent with the duty of the TPC to perform its functions and exercise its powers in a manner that furthers the objectives of the resource management and planning system of the State, s 6(3). However, ground 5.6 contains a relatively limited complaint, which is, that by failing to exercise the power to require evidence to be taken on oath or affirmation, or to give the specified warnings, the TPC has committed jurisdictional error by failing to observe the rules of natural justice. In effect, the argument is that by failing to take these steps, the TPC has engaged in a material failure to provide procedural fairness.
27 The debate between counsel at the hearing of the appeal focused on the question of materiality. Mr McElwaine pointed to a number of references by the TPC in its decision to the unsworn and unverified nature of Mr Hu's evidence, as supporting an inference that the TPC took those qualities of the evidence into account when it decided to reject Mr Hu's evidence. Mr O'Farrell submits that the TPC's reasoning was far broader than this, and that there were a number of other reasons expressed by it for the rejection of the evidence. He submits that the TPC found the evidence inherently unsatisfactory for diverse reasons, and that even if the evidence had been placed on oath or affirmation, it would have made no difference to the TPC's reasoning and its rejection of the evidence.
28 I accept the submissions of the Solicitor General in relation to this question. A consideration of the TPC's reasons as a whole reveals that while the unsworn quality of the evidence was a factor, its reasons for rejection of Mr Hu's evidence included its assessment of his demeanour, the nature of his responses to cross-examination, and internal and external inconsistencies in his evidence. For example, on the critical evidence of agency, the TPC relied heavily on the absence of corroborative documentary evidence. As already noted, in respect of the landowner consents, the TPC made particular reference to Shenglong Hong Kong Investment Ltd and noted an inconsistency in Mr Hu's oral evidence and written statements in relation to his knowledge of Mr Li Lihua's directorship. It was this inconsistency which provided the express basis for the TPC finding that "Mr Hu's evidence regarding his claimed knowledge of the directorship of Shenglong Hong Kong Investment Ltd misleading and not credible". This reasoning then directly linked to the TPC's finding at [48] that there was no evidence that Mr Kejing had been provided with authority to sign the consent letter as agent for Shenglong Hong Kong Investment Ltd, presumably by Mr Li Lihua. The TPC noted that "persuasive evidence of authority to sign the consent letter of 19 March 2019 could have been provided by way of a statutory declaration from the directors concerned or other documentary evidence as outlined above". The failure to do so was directly related to the finding that Mr Kejing did not have authority to sign the consent letter on behalf of Shenglong Hong Kong Investment Ltd. There is no suggestion that any of these issues would have been resolved if Mr Hu's evidence had been taken on oath or affirmation.
29 Ground 5.6 also encompassed the TPC's asserted failure to act on Mr Hu's unverified evidence. It was not clear to me from Mr McElwaine's submissions whether this submission went as far as asserting that by failing to alert the appellants to the need to call corroborative evidence of the nature subsequently presented to the primary judge, the TPC had denied procedural fairness to them. In any event, although as I have previously noted, it would have been prudent for the TPC to take this approach,
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its failure to do so, in my view, does not amount to a failure to provide natural justice to the appellants. The appellants had been made aware of the issues, and it was clear that the credibility and reliability of Mr Hu was under attack by the representors. The issues were known to the appellants and it was a matter for them as to how they presented their case. A decision-maker is not required as a matter of procedural fairness to disclose its thinking about the evidence presented to it before making a decision. This point was made by Blow J (as he then was) in Skilltech Consulting Services Pty Ltd v Bold Vision Pty Ltd
[2013] TASSC 3 at [23]:
"Ordinarily, procedural fairness does not require a decision-maker to disclose his or her provisional conclusions: Sinnathambi v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506. As Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:
'... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished'. "
30 It follows that the primary judge would inevitably have rejected ground 5.6 of the general order. A determination of that ground would have made no difference to the outcome of the proceedings before his Honour, including with respect to the issue of costs. Accordingly, there is no merit in ground 2.
Re-determination of the costs issue
31 The power of a Supreme Court judge to award costs derives from s 12 of the Supreme Court Civil Procedure Act 1932. Section 12(2) of that Act and r 57 of the Supreme Court Rules 2000 make it clear that the award of costs is in the discretion of the judge. It is well established, however, that that discretion "must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation": Northern Territory v Sangare [2019] HCA 25, 265 CLR 164 at [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).
32 The requirement that the discretion be exercised judicially recognises the existence of guiding principles which inform the exercise of the discretion. These principles suggest a "usual" approach which can be departed from if such departure is justified in the circumstances. Two aspects of the "usual" approach which are relevant to this case are:
The award of costs will follow the outcome, that is, the successful party will be entitled to costs. The costs so allowed will be assessed on a party and party basis. This can be distinguished from the
assessment of costs on a solicitor and client (full indemnity) basis.33 Departure from these guiding principles will require justification deriving from the circumstances of the particular case. In respect of the usual award in favour of the successful party, the majority in Northern Territory v Sangare noted at [25]:
"The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome."
34 The authorities suggest a similar approach to the basis of the assessment of costs. These authorities were discussed in some detail by the Full Court of the Federal Court of Australia in Zibara v Ultra Management (Sports) Pty Ltd [2021] FCAFC 4 at [176]-[178]. The principle which emerges from these authorities is that an award of costs on an "indemnity" basis is not intended to punish the unsuccessful party, but rather to compensate the successful party fully "when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent
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party to the expenditure of costs" per Gray J (with whom Carr and Goldberg JJ agreed in Hamod v State of New South Wales [2002] FCAFC 97, 188 ALR 659). In other words, there must be some aspect of the circumstances of the case which "justify the making of an order for the payment of costs other than a party and party basis": see Kenny J in Morad v El-Ashey (No 2) [2017] FCA 1612.
35 In this case, the primary judge departed from both aspects of the usual position. Although his Honour awarded relief as sought to the appellants, he ordered that they pay costs "on an indemnity basis". As already noted, it is uncontroversial that, by ordering costs on an indemnity basis, his Honour was referring to costs assessed on a solicitor and client basis.
36 The primary judge's reasons for taking this position can be gleaned from the paragraph already quoted, together with the comments made during the course of argument. It is clear that his Honour was satisfied that the TPC was justified in not being prepared to act on the basis of Mr Hu's evidence in respect of the question of agency, and that the appellant should not have relied solely on Mr Hu's evidence in respect of the question of landowner consent. As his Honour said at [26], his view was that the appellants "should have filed a proof of evidence, or even a statutory declaration, detailing the material contained in the affidavit of Mr Kejing" that had been filed after the TPC hearing, in respect of the proceedings before the primary judge. It is clear that the primary judge considered that the appellant's failure to provide this corroborative evidence from Mr Kejing was the factor which justified both an award of costs against the successful party, together with costs assessed on a solicitor and client basis.
37 I am satisfied that his Honour's approach to the question of costs was, in the circumstances of this case, incorrect and should not be adopted by this Court. However, there are reasons in this case to depart from the usual position. In my view, the appropriate resolution of the question of costs in respect of the proceedings before the primary judge is that each party should bear their own costs. My reasons for these conclusions are as follows.
38 Firstly, there is nothing about the appellants' conduct of the proceeding before the TPC or before the primary judge that warranted or justified an order that they pay the respondent's costs, and certainly nothing about that conduct that warranted assessment of costs on a full indemnity basis. There is no question that prior to the hearing, the TPC had placed the appellants on notice with respect to concerns identified in the representations and by the TPC with respect to landowner consent. The appellants' solicitor, Mr McElwaine, attempted to deal with these concerns by correspondence, but also agitated for a hearing to determine the jurisdictional questions. When the TPC agreed to hold such a hearing, the appellants provided the evidence of Mr Hu which, had he been accepted by the TPC as a credible and reliable witness, would have been sufficient to satisfy the perceived jurisdictional issues. The decision of the TPC to reject the credibility and reliability of Mr Hu's evidence was open to it, but, having regard to the evidence presented to the primary judge which corroborated Mr Hu's evidence, his evidence was and had always been accurate. In my view, it was reasonable for the appellants to proceed before the TPC on the basis that Mr Hu's evidence was sufficient to satisfy the queries relating to landowner consent. It is a question of judgment and degree as to whether the appellants should have provided corroborative evidence at the initial hearing, but its failure to do so, in my view, could not be said to be conduct justifying a departure from the usual rule in respect of the costs of the proceedings before the primary judge. Ultimately, the position of the appellants before the TPC, and the evidence of Mr Hu submitted to establish that position, was vindicated.
39 The reasonableness of the appellants' approach to the hearing before the TPC is supported by the fact that no other party presented any evidence in contradiction to that of Mr Hu. Under the preliminary directions of the TPC, all parties were required to provide notice of evidence to be presented at the hearing. In the absence of contradictory evidence, the appellants' failure to anticipate that the TPC would not accept Mr Hu's evidence without corroboration is unsurprising, and does not amount to
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conduct which justifies a departure from the usual rule as to costs in respect of the supervisory
proceedings.40 Further, apart from one matter, there is nothing about the conduct of either party in respect of the proceedings before the primary judge which would support anything other than the usual order as to the costs of those proceedings. As I have already observed, the purpose of a costs order is to compensate a party who has been subjected to the expenditure of costs by the conduct of the other party. In this case, the respondent was not a party to the proceedings before the TPC. The Attorney-General was joined as a party on 16 March 2020, to act as a contradictor in respect of the proceedings before the primary judge. Hence, the expenditure of costs by the respondent can only relate to the Attorney- General's involvement in the primary proceedings.
41 The appellants filed the further corroborative material after the Attorney-General's joinder. That evidence was a further affidavit of Mr Hu filed on 4 August 2020 and an affidavit of Mr Kejing filed on 27 July 2020. According to the written submissions on behalf of the respondent presented to the primary judge, the respondent accepted from the outset that that material established the jurisdiction of the TPC, but argued that the appellants should be refused supervisory relief as a matter of discretion. In particular, counsel for the respondent submitted that a grant of relief to the appellants would be "a reward for a failure to properly appraise the TPC of material matters", and that the TPC retained jurisdiction to determine its jurisdiction and consider that issue afresh on the basis of the further affidavit material. Its ultimate submission was that:
"31 The general order to show cause ought to be discharged and the applicants ordered
to pay the costs of the Attorney-General."
42 Counsel for the respondent reiterated this position in the hearing before the primary judge. However, his Honour did not accept the argument. It was disposed of briefly as follows:
"[23] The fact that the request for the amendment has proceeded thus far, to the point where it should be heard and determined by the TPC, is to my mind a sufficient circumstance to justify relief being granted."
43 As already noted, his Honour considered that the failure of the appellants to submit the evidence from Mr Kejing to the TPC justified the impugned order for costs. However, even if this was correct, the only expenditure of costs occasioned on the part of the respondent was that necessary to resist the claim for relief in the nature of certiorari. It may well have been reasonable for the respondent to take this position prior to the filing of the affidavit of Mr Kejing. However, from that point, the only possible argument against the grant of relief was that made by the respondent's counsel in respect of discretion. On that issue, the respondent was unsuccessful.
44 On that basis, it is strongly arguable that the appellants should be entitled to the usual order for costs against the respondent in respect of the primary proceedings, at least for that part of the proceedings after the filing of the fresh material. However, I think the better view is that there should be no order as to the costs of the primary proceedings. It was reasonable for the Attorney-General to join the proceedings as a contradictor. Further, the appellants, having been unsuccessful in the proceedings before the TPC, had no choice other than to either attempt to re-agitate the matter before the TPC, or to seek relief from the primary judge. The expenditure of costs incurred by the appellants was, therefore, inevitable irrespective of any opposition from the respondent and arose directly from findings made by the TPC. The resistance proffered by the Attorney-General was not determinative of that expenditure. Accordingly, I am of the opinion that the interests of justice are served by each party paying their own costs in respect of the proceedings before the learned primary judge. Neither party can fairly claim that the other party has unnecessarily subjected them to the expenditure of costs.
45 Accordingly, I would allow the appeal, order that the costs order made by the primary judge be quashed, and make no further order in respect of the costs of the primary proceedings.
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File No FCA 3005/2020
CAMBRIA GREEN AGRICULTURE & TOURISM MANAGEMENT PTY LTD
CAMBRIA GREEN AGRICULTURE DEVELOPMENT PTY LTD
STAR GREEN AGRICULTURE DEVELOPMENT LTD, EMPEROR SHUN GREEN
AGRICULTURE DEVELOPMENT LTD, MOON GREEN AGRICULTURE
DEVELOPMENT LTD, EMPEROR YUE GREEN AGRICULTURE
DEVELOPMENT LTD, SHENGLONG HONG KONG INVESTMENT LTD, SUN
GREEN AGRICULTURE DEVELOPMENT LTD, SIU LAM SUEN,
LIU KEJINGG v THE HONOURABLE ELISE ARCHER,
ATTORNEY-GENERAL FOR TASMANIA
| REASONS FOR JUDGMENT | FULL COURT MARSHALL AJ 3 June 2021 |
46 I agree with the reasons for judgment of Brett J and with the order proposed by him.
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