CIC Australia Ltd v Australian Capital Territory Planning and Land Authority - [2013] ACTSC 96

CIC AUSTRALIA LTD v ACT PLANNING AND LAND AUTHORITY, MAINORE PTY LTD and ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
[2013] ACTSC 96 (31 May 2013)

ADMINISTRATIVE LAW – Appeals from Administrative Authorities – appeal from ACT Civil and Administrative Tribunal – appeal against costs order made by tribunal – appeal available with leave on a question of law – powers of Supreme Court on appeal on question of law.

STATUTES – Interpretation – scope of power of ACT Civil and Administrative Tribunal to award costs – power to award costs limited to cases and orders specified in s 48(2), ACT Civil and Administrative Tribunal Act 2008 (ACT).

STATUTES – Interpretation – scope of power of ACT Civil and Administrative Tribunal to dismiss applications – whether application must be dismissed as frivolous or vexatious if circumstances would permit such dismissal – whether application is as a matter of legal reality dismissed as frivolous or vexatious if circumstances would permit such dismissal, irrespective of basis for dismissal referred to by tribunal.

STATUTES – Interpretation – whether application that becomes futile is therefore frivolous or vexatious for ACT Civil and Administrative Tribunal Act 2008 (ACT).

Administrative Appeals Tribunal Act 1975 (Cth), s 42B

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 6, 7, 31, 32, 48, 49, 56, 86
Administrative Appeals Tribunal Act 1989 (ACT), s 46
Land (Planning and Environment) Act 1991 (ACT), s 172C
Leases (Commercial and Retail) Act 2001 (ACT), s 154
Legislation Act2001 (ACT), ss 126(4), 127, 132(1)(a),132(1)(b), 139, 146
Planning and Development Act 2007 (ACT), s 184(2)(d)

Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 46, 109, 148(7)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 100, 102

State Administrative Tribunal Act 2004 (WA), ss 87, 88

Court Procedures Rules 2006 (ACT), rr 5051, 5052

Explanatory Statement for the ACT Civil and Administrative Tribunal Bill 2008 (ACT)
Explanatory Statement for the Justice and Community Safety Legislation Amendment Bill 2010 (ACT)

Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133
Arthur McWitton Pty Ltd v Perpetual Trustee Co Ltd (Magistrates Court, 9 March 2005)
Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1
Brown v West (1990) 169 CLR 195
Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack & Ors [2003] NSWCA 302
Garry O’Donnell v Environment Protection Authority [2012] ACTSC 140
House v The King (1936) 55 CLR 499
JH v Director-General, Community Services Directorate [2012] ACTSC 30
Kingsley’s Chicken Pty Ltd v Queensland Investment Corporation and Anor (Magistrates Court, 11 November 2005)
Liangis v IPEX ITG Pty Ltd [2005] ACTCA 28
Mainore Pty Ltd & ACT Planning and Land Authority & CIC Australia Pty Ltd [2011] ACAT 24 (17 March 2011)
Oshlack v Richmond River Council (1998) 193 CLR 72
Osland v Secretary to the Department of Justice (2010) 241 CLR 320
Re Williams and Australian Electoral Commission [1995] AATA 160
Save the Ridge and ACT Planning and Land Authority& Anor [2004] ACTAAT 16
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (established under s 127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631
Warren Gardner & Julie Beaver v ACT Planning and Land Authority [2010] ACAT 64

ON APPEAL FROM THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL

No. SCA 37 of 2011

Judge: Penfold J
Supreme Court of the ACT

Date: 31 May 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 37 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL

BETWEEN:
CIC AUSTRALIA LTD             Appellant
AND:
ACT PLANNING AND LAND
AUTHORITY  First Respondent
MAINORE PTY LTD                Second Respondent
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL Third Respondent

ORDER

Judge:  Penfold J
Date:  31 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

Leave is granted to appeal on four specified questions of law.
The questions of law are identified and answered as follows:
Question 1: Does the ACT Civil and Administrative Tribunal (ACAT) have power to make costs orders under s 48 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) apart from the power to make costs orders of the kinds specified in s 48(2) in the circumstances specified in s 48(2)?
Answer: No. ACAT’s only powers to make costs orders are found in s 48(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) and any other applicable legislative provisions.
Question 2: Does ACAT have power to dismiss an application under s 56(d) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) if the application could be dismissed under s 32 of that Act?
Answer: Yes.
Question 3: Does s 48(2)(d) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) apply not only to applications dismissed under s 32 of that Act but also to applications that could have been dismissed under s 32?
Answer: No.
Question 4: Are all applications that have become futile therefore frivolous or vexatious for the purposes of s 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACT)?
Answer:
No.
The appeal is upheld.
The order of the ACT Civil and Administrative Tribunal (ACAT) that the appellant pay the respondent’s costs of the proceeding in ACAT is set aside.
The respondent is to pay the appellant’s costs of this appeal.
The parties will be heard about any other orders required.

Introduction

This is an appeal against an award of costs made by the ACT Civil and Administrative Tribunal (ACAT). The order was made after an application for review of a development approval given by the ACT Planning and Land Authority (ACTPLA) came to an end when the holder of the challenged development approval surrendered it.

The award was made in favour of the second respondent (the applicant in ACAT).

The first and third respondents entered submitting appearances only, and took no part in this appeal.

Background

CIC Australia Ltd (CIC) made a development application to ACTPLA, which ACTPLA approved on 17 September 2010. Mainore Pty Ltd (Mainore) sought ACAT review of ACTPLA’s decision, filing its application for review on 14 October 2010. On 4 November 2010, CIC was joined as a party to the review. Between December 2010 and February 2011, various ACAT documents, expert and other evidence, and authorities, were filed and served.

The ACAT hearing

21 February 2011

On 21 February 2011, the review application was called on for hearing, and CIC advised that it had that day given notice to ACTPLA that it would surrender its development approval and make a new development application.

Mainore foreshadowed an application to discontinue its proceedings by withdrawing the review application, but declined to do so until ACAT had dealt with its application for costs against CIC (this approach was said to have been adopted so as not to deprive ACAT of jurisdiction).

Section 56 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act) gives ACAT power, among other things, to dismiss a proceeding if the applicant has withdrawn.

CIC asked ACAT to dismiss the review proceedings under s 32 of the ACAT Act, which relevantly permits ACAT to dismiss an application that it considers is frivolous or vexatious.

The basis for exercising the power under s 32 was, said CIC, that the proceedings to review the development approval had become futile, and therefore frivolous or vexatious, as a result of its surrender of the development approval.

22 February 2011

On 22 February 2011, the matter continued before ACAT. Mainore sought its costs from CIC. Submissions were heard, and further written submissions were permitted to be filed. At no stage did Mainore formally discontinue or withdraw its application.

The ACAT decision

ACAT reserved its decision. Judgment was delivered on 17 March 2011 (Mainore Pty Ltd & ACT Planning and Land Authority & CIC Australia Pty Ltd [2011] ACAT 24 (17 March 2011)). ACAT indicated (at [21] of its judgment), although without giving reasons, its view that the proper basis for dismissing the application was s 56(d) of the ACAT Act. As well as formally dismissing the application for review, ACAT ordered that CIC, which had surrendered the challenged development approval, pay Mainore’s costs.

The appeal

The appeal from an ACAT first instance decision in a matter arising under, relevantly, the Planning and Development Act 2007 (ACT) is, under s 86(2) of the ACAT Act, to the Supreme Court on a question of law. Under s 86(3) of that Act, leave is required for such an appeal. In this case, the application for leave and the appeal were ordered to be heard together.

The questions of law identified in the notice of appeal to the Supreme Court were as follows:

i. Whether in circumstances where an applicant has not withdrawn its application for review, or discontinued the proceeding, but the subject matter of the review has ceased to exist, the proper exercise of the power to dispose of the proceedings is an order made pursuant to s 32(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (“ACAT Act”) and not an order pursuant to s 56(d) of the ACAT Act (Tribunal’s Decision at [20], [21]);
ii.Whether it is relevant to the exercise of the discretion to award costs under s 48(1) of the ACAT Act to consider whether:
a) it is open to the Tribunal to make an order for costs under s 48(2) or s 49 of the ACAT Act (Tribunal’s Decision at [34] - [37]);
b) the circumstances described in a precondition to any one of the paragraphs of s 48(2) exist, as a matter of form or substance, and the Tribunal is not in those circumstances empowered to award costs to the party seeking costs (Tribunal’s Decision at [36] – [37]);
iii.Whether it is irrelevant to the exercise of the discretion to award costs under s 48(1) in a merits review proceeding that the proceeding resembles a conventional commercial adversarial dispute (Tribunal’s Decision at [11], [12], [49]); and
a)   if that consideration is not irrelevant, whether the conclusion that the proceeding resembles a conventional commercial adversarial dispute is infected by legal error.
iv.Whether it is irrelevant to the exercise of the discretion under s 48(1) to consider whether the applicant has incurred expense and the quantum of its costs (Tribunal’s Decision at [27], [28]);
v.Whether it is relevant to the exercise of the discretion under s 48(1) to consider whether making costs orders in matters that are resolved or become futile shortly before, or upon, or during the hearing, may operate as a disincentive to parties’ resolving matters at any time subsequent to the early stages of the proceeding (Tribunal’s Decision at [65]);
vi.Whether the surrender of a development approval pursuant to s 184(2)(d) of the Planning and Development Act 2007 (ACT) (“PD Act”) is properly categorised as a “supervening event” and not as a “surrender”, in the sense in which those terms are used by Burchett J in One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548 at [6] (Tribunal’s Decision at [76]);
vii.Whether the surrender of a development approval pursuant to s 184(2)(d) of the PD Act by a party to pending proceedings for review in the Tribunal is effectively discontinuance of the proceedings by that party without consent (Tribunal’s Decision at [77]);
viii.Whether for the purposes of the exercise of the discretion under s 48(1) of the ACAT Act to award costs, a party engages in unreasonable or disentitling conduct by:
a) not having offered an explanation as to why it did not surrender its development approval under s 184(2)(d) of the PD Act earlier (Tribunal’s Decision at [26], [29], [79]); or
b)   having surrendered the development approval at a time assessed by the Tribunal to have been unreasonable (Tribunal’s Decision at [81]);
ix.Whether, for the purposes of the exercise of the discretion to award costs, a party engages in unreasonable or disentitling conduct by not having provided evidence, or taken other steps to advise the Tribunal, that any subsequent development application will address any or all of the matters alleged by another party in the proceedings to have been deficiencies in the surrendered development approval (Tribunal’s Decision at [80]);
x.Whether in relation to the removal of the subject matter of a proceeding the motives of a party to the proceeding are relevant to the exercise of the discretion under s 48(1) (Tribunal’s Decision at [79]);
xi.Whether there was no evidence for the Tribunal’s findings that:
a)   the appellant surrendered the development approval for a commercial reason;
b)   the appellant could have taken a decision at any time after the application for review was lodged to surrender the development approval (Tribunal’s Decision at [13], [82]);
c)   the appellant’s legal representative made a concession that supported a finding that the appellant could have taken a decision to surrender the development approval three months earlier or that the appellant acted unreasonably (Tribunal’s Decision at [29], [81]);
d)   the appellant acted unreasonably in not surrendering the development approval at an earlier time, including at any time after the lodgement of the application for review (Tribunal’s Decision at [82]);
xii.Whether it is a relevant consideration in an exercise of the discretion under s 48(1) that the party to which the Tribunal proposes to award costs is alleged not to have standing to bring the proceeding and the Tribunal has not made a determination as to whether that party has standing.

In my view a number of these paragraphs do not raise questions of law for the purposes of s 86, and those that do would usefully be reframed.

Questions of law and the powers of the Supreme Court

Identification of questions of law

In Garry O’Donnell v Environment Protection Authority [2012] ACTSC 140 (O’Donnell), which related to the interpretation of s 172C of the Land (Planning and Environment) Act 1991 (ACT), I considered the nature of a question of law for the purposes of an appeal under s 86 of the ACAT Act, and said:

82.The proper construction of s 172C may be a matter of law rather than a matter of fact, but, as explained in Comcare v Etheridge [2006] FCAFC 27 (Comcare), that does not necessarily render it a “question of law” for the purposes of a statutory provision in the nature of s 86. In Comcare, Branson J (with whom Spender and Nicholson JJ agreed) dealt with an appeal from a decision of the Commonwealth Administrative Appeals Tribunal, which was available “on a question of law” (s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth)). Her Honour considered a question framed as “The construction and operation of ... s 9 (1) of the Commonwealth Employees’ Compensation Act1930” and said at [19] that:
A broad enquiry as to the construction and operation of statutory provisions is not a question of law within the meaning of s 44(1) of the AAT Act.

83.Her Honour explained that constitutional limits on the Federal Court’s jurisdiction also required the scope of a “question of law” to be confined, but did not suggest that this was the central reason for requiring “questions of law” to be carefully defined.
84.Branson J then went on to identify questions of law which her Honour said could “be understood to be raised by” the notices of appeal in that case, and which, having been the subject of submissions, could appropriately be answered (at [31]). Similarly, it is appropriate in this case to address any question of law that can be extracted from a combination of the fairly confused Notice of Appeal and Mr Barnett’s affidavit, and that was in fact argued at the hearing.

I note also the comments made in Osland v Secretary to the Department of Justice (2010) 241 CLR 320 in relation to appeals from the decisions of the Victorian Civil and Administrative Tribunal (VCAT) by French CJ, Gummow and Bell JJ:

17It is necessary to refer to the nature of the jurisdiction and powers of the Court of Appeal in an appeal from an order of the Tribunal. That jurisdiction and those powers continued to define the functions of the Court on the remitter of the appeal for further hearing. The relevant jurisdiction and powers are set out in s 148 of the VCAT Act, which provides, inter alia:
“Appeals from the Tribunal

(1)   A party to a proceeding may appeal, on a question of law, from an             order of the Tribunal in the proceeding—


(a)   to the Court of Appeal, if the Tribunal was constituted for the                    purpose of making the order by the President or a Vice   President, whether with or without others; or


(b)   to the Trial Division of the Supreme Court in any other case—


if the Court of Appeal or the Trial Division, as the case   requires, gives leave to appeal.


...


(7)   The Court of Appeal or the Trial Division, as the case requires, may                 make any of the following orders on an appeal—


(a)   an order affirming, varying or setting aside the order of the   Tribunal;


(b)   an order that the Tribunal could have made in the proceeding;


(c)   an order remitting the proceeding to be heard and decided   again, either with or without the hearing of further evidence, by   the Tribunal in accordance with the directions of the court;


(d)   any other order the court thinks appropriate.”
18Section 148 confers “judicial power to examine for legal error what has been done in an administrative tribunal”. Despite the description of proceedings under the section as an “appeal”, it confers original not appellate jurisdiction; the proceedings are “in the nature of judicial review”.
19The jurisdiction conferred by s 148(1) is confined to appeals on questions of law. Section 148(7) does not enlarge that jurisdiction. It confers powers on the court in aid of its exercise. That feature of s 148 resembles s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Commonwealth AAT Act), which defines the analogous jurisdiction of the Federal Court to hear appeals on questions of law against decisions of the Administrative Appeals Tribunal (AAT). Under s 44(4) of the Commonwealth AAT Act, the Federal Court, in determining an appeal, may “make such order as it thinks appropriate by reason of its decision”. But wide as that power may be, the Court “should not usurp the fact-finding function of the AAT”. Those observations turn upon the text of s 44. They do not depend upon the separation of judicial and executive powers, which limits the functions that can be conferred upon federal courts. They have application to the jurisdiction conferred upon the Court of Appeal by s 148 of the VCAT Act, which is, in concept and in terms, modelled on, although not identical to, s 44.
20The Court of Appeal, in the exercise of its jurisdiction under s 148 of the VCAT Act, may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. In that event, the Court can make the order that the Tribunal should have made. The language of s 148(7) is also wide enough to allow the Court of Appeal to make substitutive orders in other circumstances. But its powers must, as with the equivalent powers of the Federal Court in relation to the AAT, be exercised having regard to the limited nature of the appeal. Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment.

The first decision of the Court of Appeal
21There is a need for better definition of the questions of law upon an appeal to the Court of Appeal under s 148 of the VCAT Act than appeared in these proceedings. The questions of law are not to be distilled from the grounds of appeal. What Gummow J said of s 44 of the Commonwealth AAT Act in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation is true also of s 148: “The existence of a question of law is ... not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself.” The relevant question of law brought to the Court of Appeal was formulated in the notice of appeal from the Tribunal in the following uninformative terms: “Was the Judge correct in articulating the contents of the public interest for the purposes of s 50(4) of the Freedom of Information Act 1982 (Vic)?”
(citations omitted)

In that case, Hayne and Kiefel JJ, with whom Heydon J relevantly agreed, said:

71Section 148(1) of the VCAT Act provides that there is an appeal to the Court of Appeal from an order of the Tribunal. It is limited to questions of law. In Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) it was said:
“Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although s 148 uses the word ‘appeal’, it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review.”
(citations omitted)

Section 86 of the ACAT Act is on its face to the same effect as s 148 of the Victorian legislation, the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act) quoted by their Honours in the extract set out at [16] above. The powers of VCAT, as set out in s 148(7) also quoted above, are narrower than those provided by what appears to be the source of the ACT Supreme Court’s powers on such appeals. That apparent source is rr 5051 and 5052 of the Court Procedures Rules 2006 (ACT) (the CPRs) which are currently in the following form:

5051 Application—pt 5.3
(1)This part applies to an appeal to the Supreme Court from an order of a court or tribunal.

(2) This part applies subject to any territory law applying to the appeal.
Note 1A territory law includes these rules (see Legislation Act, s 98).
Note 2Appeals may be made from the courts and tribunals mentioned in table 5051 to the Supreme Court.
Note 3Certain jurisdiction of the Supreme Court under the Legal Profession Act 2006 must be exercised by a Full Court (see Supreme Court Act 1933, s 11).

Table 5051 Courts and tribunals that may be appealed from

column 1

item

column 2

court or tribunal

column 3

constitution of Supreme Court for appeal

column 4

law appealed under

1 ACT civil and administrative tribunal judge or master
ACT Civil and Administrative Tribunal Act 2008, s 83 (for appeals only) and s 86

Mental Health (Treatment and Care) Act 1994, s 141

2 adjudicator judge or master Building and Construction Industry (Security of Payment) Act 2009, s 43

3 admissions board Full Court or judge Legal Profession Act 2006, s 25

4 licensing body, bar council or relevant council Full Court Legal Profession Act 2006, s 81

5 licensing body or relevant council judge Legal Profession Act 2006, s 207, s 239 (4), s 249 (5), s 514 and s 589 (4)

6 Magistrates Court judge or master
Domestic Violence and Protection Orders Act 2001, s 79

Domestic Violence and Protection Orders Act 2008, s 97

Health Records (Privacy and Access) Act 1997, s 32 (1)

Leases (Commercial and Retail) Act 2001, s 155

Magistrates Court Act 1930, s 274

Victims of Crime (Financial Assistance) Act 1983, s 61

7 Magistrates Court judge Magistrates Court Act 1930, s 207 (1) (a)
5052Appeals to Supreme Court—general powers
(1)For an appeal to the Supreme Court, the court—
(a)has all the powers and duties of the court or tribunal that made the order      appealed from; and
(b)may draw inferences of fact; and
(c)may, on special grounds, receive further evidence about questions of fact,    either orally in court, by affidavit or in another way; and
(d)may make any of the following orders:
(i)an order confirming, amending or setting aside the order of the court or          tribunal appealed from;
(ii)an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the court or tribunal in accordance with any direction the court considers appropriate; and

(e)may make any other order that it considers appropriate.
(2)If the Supreme Court orders that it will receive further evidence, and the evidence is to be given by an expert witness, the following rules apply, with necessary changes, to the appeal:
·     division 2.12.1 (Expert evidence generally)
·     division 2.12.2 (Multiple expert witnesses for same issue)
·     rule 1242 (Supplementary expert reports)
·     rule 1243 (Expert evidence to be covered by expert report)
·     rule 1244 (Expert reports admissible as evidence of opinion etc)
·     rule 1245 (Requiring attendance of expert for cross-examination etc)
·     rule 1246 (Tender of expert report).
(3)Subrule (1) (c) is subject to rule 5193 (Further evidence on appeal to Supreme Court—Magistrates Court Act 1930, s 214).

Several items have been added to Table 5051 since the notice of appeal in this matter was filed on 27 May 2011, but at that stage item 1 was in its current form, and the table dealt with a wider range of matters than just appeals from ACAT.

The powers conferred by r 5052 are now and were in May 2011 set out in a general provision applicable to a variety of appeals from a variety of bodies including not only ACAT (appeals from which are provided for in the ACAT Act) but also the admissions board, licensing body and relevant council under the Legal Profession Act 2006 (ACT), and the Magistrates Court (appeals from which are provided for in several Acts).

It is explicit in r 5051(2) that the provisions of r 5052 are subject to any territory law applying to the appeal, which of course includes in the present case the ACAT Act.

Powers of the Supreme Court on appeal on question of law

When the CPRs came into effect on 1 July 2006 the Administrative Appeals Tribunal Act 1989 (ACT) (the AAT Act) was still in force. Section 46 of that Act provided for an appeal from the Administrative Appeals Tribunal (AAT) to the Supreme Court, with leave, on a question of law (s 46(1)). Section 46(3) and (4) of the AAT Act specified the orders that could be made by the Supreme Court on such an appeal, as follows:

(3) The Supreme Court must decide the appeal, and may make any of the following orders:
(a)an order confirming or setting aside the decision of the tribunal;
(b)an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the tribunal in accordance with the court’s directions;
(c)an order for costs.

(4) The Supreme Court may also make any other order the court considers appropriate.

That is, in 2006 the powers of the Supreme Court on an appeal on a question of law from the AAT were on their face somewhat narrower than those now set out in the CPRs (noting of course the scope for the Supreme Court to make “any other order [it] considers appropriate” under s 46(4) of the AAT Act). The enactment of the ACAT Act expanded the available appeals to the Supreme Court to include appeals on questions of fact (although not for appeals for review of decisions under specified legislation including that under which the current appeal arises), and replaced any specification of the powers of the Supreme Court in relation to ACAT appeals with the application of the broad generic powers set out in r 5052, but subject to any territory law applying to the appeal (r 5051(2)).

The effect of the making of the CPRs in 2006 and the enactment of the ACAT Act in 2008 on the nature of the appeal from ACAT is not entirely clear. If the nature of the appeal from ACAT is to be determined by reference to the generic powers conferred on the Supreme Court by the CPRs, then the scope of an appeal from ACAT is now very broad. On the other hand, if the powers conferred on the Supreme Court are to be read subject to the ACAT Act as required by r 5051(2), then it seems to me that the ACAT Act’s restriction of appeals to those involving questions of law or fact must be given some meaning, and that the meaning to be given is appropriately found in the High Court’s approach in Osland.

In Osland, VCAT had powers very similar to those conferred on the ACT AAT when the Court Procedures Rules were enacted (including the catch-all power to make any other order considered appropriate), and French CJ, Gummow and Bell JJ said at [19]:

The jurisdiction conferred by s 148(1) is confined to appeals on questions of law. Section 148(7) does not enlarge that jurisdiction. It confers powers on the court in aid of its exercise.

Hayne and Kiefel JJ made similar comments at [78]:

It appears from the reasons of the Court of Appeal that counsel for Mrs Osland accepted that the Court had power to determine the question as to the application of s 50(4) for itself. The Court of Appeal referred in that regard to s 148(7)(b) of the VCAT Act, as did the Solicitor-General for Victoria on the hearing of this appeal. Section 148(7) is concerned with the orders which might be made on an appeal to the Court of Appeal under s 148(1)(a). Paragraph (b) of s 148(7) provides that the Court may make an order that the Tribunal could have made in the proceeding. The power to make such an order, or the other orders listed in s 148(7), arises only following review of the Tribunal’s decision for legal error. Section 148(7) does not operate to expand the jurisdiction given by s 148(1)(a). Although expressed in wide language, the powers given by s 148(7) are only to be exercised as a remedial consequence of dealing with an error of law. (citations omitted)

Thus, despite the broad powers in relation to appeals from ACAT apparently conferred on the Supreme Court by r 5052, I consider that my task is:

(a)to examine and answer questions of law that may be relevant to the ACAT decision that is challenged in this appeal;
(b)as required for remedial purposes having regard to my conclusions about those questions of law, to do any of the following things:
(i)to confirm, vary or set aside ACAT’s decision;
(ii)to remit the case to ACAT to be heard and decided again, either with or without the hearing of further evidence, in accordance with my directions;
(iii)to exercise any of the powers or duties of ACAT, including the power to receive further evidence; and
(iv)to make any other order that I consider appropriate.

An approach of this kind would in some circumstances permit the Supreme Court to determine the issue between the parties by reference to the evidence, which may include evidence given before that court. It might on occasions permit the Supreme Court to re-exercise the power to make a discretionary decision if it found that there had been clear legal error in ACAT’s original exercise of the power to make the discretionary decision. However, I consider that the review by the Supreme Court of the exercise of discretionary powers by ACAT, or the re-exercise of such powers, should not be a routine or usual response to appeals from ACAT on questions of law.

The appellant’s arguments

Counsel for CIC put two main arguments on this appeal. The first raised several questions of statutory interpretation relating to whether ACAT in fact possessed the discretionary power it purported to exercise in awarding costs against CIC. The second raised various questions related to the exercise of the discretionary power that ACAT had purported to exercise.

The statutory interpretation argument

The statutory interpretation argument took two forms.

First, CIC argued that ACAT’s power to make costs orders under s 48(1) is confined to the power to make costs orders of the kinds specified in s 48(2) in the circumstances specified in that provision. None of the paragraphs of s 48(2) would have supported the order made by ACAT, so that order was, CIC said, beyond power.

Secondly, if ACAT’s power to make costs orders went beyond the circumstances described in s 48(2), CIC argued that in those particular circumstances ACAT’s power to make costs orders was nevertheless confined to the making of costs orders of the kind specified in s 48(2), and that the costs order in favour of Mainore was therefore beyond power. This argument depended on several interim steps, as to which CIC argued:

(a)That Mainore’s application had become frivolous or vexatious as a result of having become futile after CIC surrendered its development application, and could therefore have been dismissed under s 32.
(b)That s 48(2)(d) therefore applied to the ACAT proceedings despite ACAT’s express reliance on s 56(d) rather than s 32 to dismiss Mainore’s application.
(c)Therefore, that under s 48(2)(d) the only costs order available in the relevant circumstances was an order against the party whose application had been dismissed (Mainore).
(d)Therefore, that ACAT had no power to make the costs order that it purported to make against the successful party (CIC).

The arguments as set out above raise several questions of law, which I would formulate as follows:

First argument:
Question 1: Does ACAT have power to make costs orders under s 48 of the ACAT Act apart from the power to make costs orders of the kinds specified in s 48(2) in the circumstances specified in s 48(2)?
Second argument:
Question 2: Does ACAT have power to dismiss an application under s 56(d) of the ACAT Act if the application could be dismissed under s 32 of that Act?
Question 3: Does s 48(2)(d) of the ACAT Act apply not only to applications dismissed under s 32 of that Act but also to applications that could have been dismissed under s 32?
Question 4: Are all applications that have become futile therefore frivolous or vexatious for the purposes of s 32 of the ACAT Act?

It will be apparent that if I answer No to Question 1, thus confining ACAT’s costs powers to the cases set out in s 48(2), the remaining questions do not in fact arise in this case, because whatever the impact of s 32, s 48(2)(d) as such does not permit a costs order to be made in favour of an applicant. However, the remaining questions are relevant to the scope of s 48(2)(d), and the scope of s 48(2)(d) has significance whatever the broader scope of ACAT’s costs power. Since those remaining questions were argued in this case, I propose to offer answers to them.

Scope of ACAT’s power to award costs

The provision

As noted above, the key question in this appeal is the scope of ACAT’s costs powers in relation to applications of the kind dealt with in the decision under appeal. That costs power is set out in s 48 of the ACAT Act, which is set out in full in the Appendix. The relevant provisions are as follows:

48Costs of proceedings
(1)The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.
(2)However—
(a)if the tribunal decides an application in favour of the applicant—the tribunal may order the other party to pay the applicant the filing fee for the application; or
(b)if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or
(c)subject to section 49, if a party to the application contravenes an order of the tribunal—the tribunal may order the party to pay the costs or part of the costs of the application to the other party; or
(d)if the application is an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, and the tribunal makes an order under section 32(2) (Frivolous and vexatious applications)—the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application.

The development approval to be reviewed by ACAT was given under the Planning and Development Act 2007 (ACT).

There are four main elements of s 48:

(a)That the default position is that the parties bear their own costs.
(b)That the default position may be varied by provisions of the ACAT Act.
(c)That the default position may be varied by an order of ACAT.
(d)That in four specified circumstances, ACAT may make particular costs orders.

For the purpose of my consideration of s 48, I note first the requirement in s 139 of the Legislation Act2001 (ACT) to prefer the interpretation of a provision that would best achieve the legislative purpose.

CIC argued that the primary reason for rejecting an interpretation of s 48 that would give ACAT a broad costs power is that it “would then have a power to award costs that does not differ from that of a court or tribunal with a general power to award costs”. In the absence of any particular reason why ACAT should not be a tribunal with a general power to award costs, this partly tautological submission does not seem to advance matters. However, I note that in fact s 48(1) would still distinguish ACAT from a court with a general power to award costs, given that in litigation conducted in courts the general expectation is that, absent particular reasons for the court to make another order, costs will be awarded to the successful party. In Oshlack v Richmond River Council (1998) 193 CLR 72, McHugh J referred at [67] to:

the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant.

Consideration

The words of s 48

Section 48 is a very peculiar provision. It consists of several elements cobbled together apparently without regard to their combined effect, and is simply not coherent.

On the face of it, s 48(1) creates a default position (that parties to ACAT proceedings bear their own costs) that can be overridden in two circumstances, namely by other legislative provisions, or by an order made by ACAT under a power which on its face is unqualified. Section 48(1) standing alone would be a meaningful provision.

The problem arises with s 48(2), which begins with the word “However”. This is a word that, in its meaning of “but” or “nevertheless”, indicates a qualification of or retreat from previous material (none of the other meanings of “however” make any sense at all in this context). The obvious interpretation, therefore, is that s 48(2) qualifies a preceding provision.

The phrase immediately preceding “However” is to the effect that the Tribunal has a power to make costs orders that would depart from the default provision of parties bearing their own costs. The obvious kind of qualification would be a restriction on the apparently unqualified power to make costs orders. It therefore seems odd that s 48(2) is not on its face a qualification of that power. Rather, it explicitly sets out circumstances in which ACAT may make certain types of costs orders. There is no suggestion that ACAT is required to make such orders, and nor is there any indication that, in the specified circumstances, ACAT may only make the specified types of costs orders. There is no indication that these are the only circumstances in which ACAT may make costs orders.

To make any sense of “However”, it is necessary to read extra words into s 48 somewhere. The following possibilities are expressed as expansions of “However”, but the same results could be achieved by reading appropriate extra words into either s 48(1) or the individual paragraphs of s 48(2). These suggestions ignore the possibility that s 48(2) is also intended to limit the scope for making other legislative provisions for costs orders (that is, by qualifying “unless this Act otherwise provides”):

(a)If the introduction to s 48(2) read: “However, in a circumstance described in any of the following paragraphs, the tribunal may only make the order described in the paragraph concerned:”, the provision would qualify only ACAT’s power to make costs orders in the specified circumstances, and would do so by confining that power in those circumstances to the power to make the orders set out in the paragraphs concerned.
(b)If the introduction to s 48(2) read: “However, the tribunal may only make a costs order in the circumstances described in the following paragraphs, and may only make the order described in the paragraph concerned:”, the provision would qualify ACAT’s costs power in general by confining it to the making of the orders specified in the circumstances specified, and excluding any general power to make costs orders.

There is, however, nothing in the general words of s 48 that provides a basis for choosing between the alternative readings set out above. Only the use of “However” tells against reading s 48(2) as simply setting out some examples of how the general costs power could be exercised.

Despite these difficulties, some conclusion must be reached about how s 48 is to operate. It is necessary to look beyond the general words of the section in order to reach that conclusion.

It is convenient before doing so to give labels to what seem to be the three possible interpretations of s 48:

(a)I shall refer to the interpretation of s 48 as conferring a broad discretionary costs power (s 48(1)) with examples of how the power might be used (s 48(2)) as the Broad costs power with Examples meaning.
(b)I shall refer to the interpretation of s 48 as conferring a broad discretionary costs power (s 48(1)) that, in the circumstances set out in s 48(2), may only be exercised as set out in s 48(2) as the Broad costs power with Limits meaning.
(c)I shall refer to the interpretation of s 48 as conferring a costs power only in the circumstances set out in s 48(2), and only to make the orders described in s 48(2), as the Narrow costs power meaning.

Particular provisions of the ACAT Act

Apart from s 48, there is no specific provision in the ACAT Act empowering ACAT to make a costs order.

Section 48(2)(a)

Section 48(2)(a) permits ACAT to order a respondent to pay the filing fee for a successful applicant. This would be a sensible provision as an example of the costs orders ACAT might make under a broad costs power. It would be a sensible provision if it set out one of the limited circumstances in which ACAT had any power to make costs orders, and the only kind of order that could then be made. The provision would, however, have a very odd operation if it limited the orders that could be made in the specified circumstances, but against the background of a broad discretion only limited by s 48(2). The effect of the provision would be odd in that (except where another paragraph of s 48(2) permitted the making of other particular orders) the only costs order that could be made in favour of a successful applicant would be for the payment of the filing fee, while under the general costs power only limited by s 48(2), the orders that could be made in favour of an unsuccessful applicant, or in favour of a respondent whatever the outcome, would be potentially much more generous.

That is, s 48(2)(a) gives support to an interpretation of s 48 as conferring either a Broad costs power with Examples or a Narrow costs power; it does not support interpreting s 48 as conferring a Broad costs power with Limits.

Section 49

The relationship between s 48(2)(c) and s 49 (set out in the Appendix) is notable. Section 48(2)(c) is the only paragraph of s 48(2) that gives, in effect, a discretionary costs power (exercisable where a party has contravened an ACAT order), whereas the other three paragraphs have the effect that, in a specified circumstance, a specified costs order may be made (eg an order that the respondent pay the applicant’s filing fee, s 48(2)(a) of the ACAT Act). Section 49 confines the operation of the discretionary power conferred by s 48(2)(c) in several ways:

(a)it specifies a prerequisite for the exercise of the power, being that ACAT must be satisfied that it is in the interests of justice to make the relevant costs order (s 49(1)); and
(b)it specifies three matters that must be considered by ACAT in deciding whether to make a costs order, two relating generally to the circumstances and effect of the contravention of the ACAT order on the particular proceedings (ss 49(2)(a) and (b)) and one relating to the more general impact on the community of making such a costs order (s 49(2)(c)).

Read in isolation, s 49’s significance is unclear, although certainly the provision evinces a clear intention to constrain the exercise of the discretionary costs power under s 48(2)(c). As a matter of logic, this still does not indicate whether s 48(2)(c) is part of the conferral of a Broad costs power with Examples, a Broad costs power with Limits, or a Narrow costs power. As a matter of policy, however, it is not clear why, if ACAT is intended to have a broad costs power (with or without limits imposed by s 48(2)), the exercise of that broader power would not also be made subject to requirements such as that ACAT is satisfied that the interests of justice require it. On that basis s 49 would support an interpretation of s 48 as conferring a Narrow costs power.

Section 32

Section 32 (set out in the Appendix) contains a note pointing out that under s 48(2)(d), ACAT may make a costs order against an applicant whose application is dismissed under s 32 if the application is made under one of the three Acts referred to in s 48(2)(d). This note describes s 48(2)(d) as a provision under which ACAT may make a costs order in certain circumstances rather than as a provision limiting ACAT’s costs power in certain circumstances; the inclusion of this note in s 32 suggests that there is no more general costs power in relation to other applications that might be dismissed under s 32. This note also supports an interpretation of s 48 as conferring a Narrow costs power.

Legislative purpose – s 6 of the ACAT Act

The requirement to consider the purpose of the legislation provides little help in this interpretative task. Section 6 of the ACAT Act sets out a wide variety of objects for the Act; the only ones that seem to be relevant are the following:

(b)   to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and
(c)    to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice; and
(d)   to ensure that decisions of the tribunal are fair; and
(e)    to enhance the quality of decision making under legislation; and
(f)    to encourage, and bring about, compliance in decision making under legislation;

A default position that an unsuccessful party was liable to pay the successful party’s costs would no doubt be contrary to several of these objects, but it is not so clear that the objects would be impeded by giving ACAT a wide but discretionary power to override the actual default position that each party bears its own costs. There is an argument that the aim of providing simple and inexpensive review of relevant decisions is served by limiting ACAT’s costs powers, but it is also easy to imagine classes of cases in which the possibility of a favourable costs order might make ACAT review more accessible to some individuals. As well, the possibility of an unfavourable costs order might encourage litigants generally to conduct their matters efficiently, and might encourage possible respondents to avoid ACAT review by improving their decision-making and their compliance with relevant decisions. Certainly it is hard to argue that the only costs orders that could ever serve the objects set out in s 6 are the ones detailed in s 48(2). All the relevant objects might be well served, or even best served, by the absence of any general liability for costs combined with the conferral of a broad discretionary costs power on ACAT, such as seems to be provided for by s 48(1).

In my view, there is nothing in the objects of the legislation that clearly establishes that ACAT is intended to have only a limited costs power rather than a broad discretionary costs power.

Interpretation of predecessors of s 48

Counsel for Mainore, arguing in favour of a broad costs power for ACAT, relied on several cases decided before the enactment of the ACAT Act in relation to s 154 of the Leases (Commercial and Retail) Act 2001 (ACT), which was as follows:

The parties in a proceeding under this Act must bear their own costs unless the Magistrates Court or Supreme Court makes an order about costs.

There was in the Leases (Commercial and Retail) Act no qualification by reference to other provisions of the Act, no provision similar to s 48(2), and no other provision apparently intended to confine the discretion conferred by s 154.

In Arthur McWitton Pty Ltd v Perpetual Trustee Co Ltd (Magistrates Court, 9 March 2005) at [3], Magistrate Burns considered s 154 of the Leases (Commercial and Retail) Act 2001, and found that the Magistrates Court “has a broad discretion in determining whether the individual circumstances of a particular case call for an award of costs”.

In Kingsley’s Chicken Pty Ltd. v Queensland Investment Corporation and Anor (Magistrates Court, 11 November 2005) at [6], Magistrate Burns said:

Section 154 provides the usual rule governing cost applications under the Leases Act. The usual rule is that each party pay their own costs. The Court has discretion to depart from the usual rule where the circumstances of the case make it just to do so. The Court is not required to identify special or exceptional circumstances in order to make a costs order, but the Court must be satisfied that there are cogent reasons for departing from the usual rule.

In Liangis v IPEX ITG Pty Ltd [2005] ACTCA 28, the Court of Appeal held at [5] that s 154 conferred a discretion to award costs that was

not constrained by any requirement that special or exceptional circumstances be demonstrated, [but that] there must be some identifiable factor or factors sufficient to justify a departure from the normal rule.

Given the context of s 154 (as described at [58] above), I would have interpreted s 154 as the Court of Appeal and Magistrate Burns did. However, in the current case, s 48(2) requires the apparently broad discretion conferred by s 48(1) to be re-interpreted in context, a context that is quite different from the context of s 154.

Counsel for Mainore submitted that:

where the legislature repeats words which have been the subject of judicial interpretation it is taken to have intended the words to bear the meaning judicially attributed to them.

To the extent that this is an accurate statement of principle, it is incomplete, requiring at least a qualification such as “unless the legislature, in repeating those words, expressly qualifies them”. The current case involves an apparent attempt by the legislature to qualify words of the kind that have previously been the subject of judicial interpretation, so that earlier judicial interpretation is of limited significance.

Other judicial consideration

In Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133, Refshauge J considered the scope of ACAT’s power to award costs under the Legal Profession Act 2006 (ACT). It was accepted that s 48 of the ACAT Act was not applicable to matters arising under the Legal Profession Act, but his Honour at [90] quoted the following comments made by Professor Dal Pont in Law of Costs at [6.10]:

The curial interpretation of the scope of tribunals’ costs jurisdiction has been more restrained again. For a tribunal to have jurisdiction to order costs, it must be clearly conferred by statute. Moreover, it appears that courts will adopt a narrow interpretation of, or otherwise read down, even a broad discretion in a tribunal where its exercise is inconsistent with the purposes of the tribunal in question. In practice, though, the legislative trend is to prescribe those circumstances, if any, in which a tribunal may make a costs order rather than vest the tribunal with a general costs discretion. (Footnotes omitted; emphasis in the original)

This comment is helpful in describing the general approach to costs powers conferred on tribunals, but presumably refers to a “legislative trend” discernible in the words of relevant legislation; it does not provide an immediate answer where the effect of the particular legislation is unclear.

Explanatory material

The Explanatory Statement for the ACT Civil and Administrative Tribunal Bill 2008 contains the following comments about clause 48 of the Bill, which did not include an equivalent of s 48(2)(d):

Clause 48 Costs of proceedings
Provides that the parties must bear their own costs unless this Act or the tribunal otherwise orders:
·If the tribunal decides a proceeding on an application in favour of the applicant, the tribunal may order the other party to pay the applicant the filing fee for the application;
·If the tribunal considers that a party caused unreasonable delay or obstruction before or during the proceeding, the tribunal may require the party to pay the reasonable costs of the other party arising from the delay or obstruction; and
·Subject to clause 49 (costs for contravening an order), if a party to the application contravenes an order of the tribunal – the tribunal may order the contravening party to pay all or part of the costs of the application to the other party.

Although this paragraph appears to be a paraphrase of s 48, it is clearer than s 48 itself (while not entirely unambiguous). The punctuation of this paragraph, with the three bullet points that reflect the circumstances dealt with in s 48(2)(a), (b) and (c) set out as part of the sentence that permits ACAT to override the default position, and linked to the rest of that sentence not by any qualifying word like “however” but just by a colon, suggests that the three bullet points set out the cases in which the tribunal may “otherwise order”. Furthermore, nothing in the paragraph points to any other possible reading of it.

The Explanatory Statement for the Justice and Community Safety Legislation Amendment Bill 2010, which inserted s 48(2)(d), provides the following explanation for the insertion of the new provision:

Clause 1.4 – New section 48(2)(d)
Section 48 of the ACAT Act provides the general rule that parties before the ACAT must bear their own costs, except in certain circumstances (such as where a party causes unreasonable delay or obstruction). The amendment inserts a new section 48(2)(d) to enable the tribunal to make an order for reasonable costs (except holding costs) where the tribunal considers that the application is a frivolous and vexatious application for the administrative review of a decision under the Heritage Act 2004, the Planning and Development Act 2007, and the Tree Protection Act 2005).This change is intended to ensure certainty in relation to these types of reviews (consistent with section 22P of the ACAT Act which provides that the tribunal must decide applications under these Acts within 120 days after the day the application is made).

That explanation indicates a clear legislative assumption that s 48 provides only very limited exceptions to “the general rule that parties ... must bear their own costs”. First, the exceptions to the default position apply in “certain circumstances (such as where a party causes unreasonable delay or obstruction)”; this is a clear reference to s 48(2)(b). Secondly, the new provision (s 48(2)(d)) is clearly described as an empowering provision (it “enable[s] the tribunal to make an order for reasonable costs”) rather than as imposing a further restriction on ACAT’s costs powers or simply setting out another example of those costs powers.

The explanatory material supports a conclusion that s 48 is intended to confer a Narrow costs power.

Other jurisdictions

Similar tribunals with wide-ranging jurisdiction have been established in Victoria, Queensland and Western Australia, being:

(a)VCAT established by the VCAT Act;
(b)the Queensland Civil and Administrative Tribunal (QCAT) established by the Queensland Civil and Administrative Tribunal Act 2009 (Qld); and
(c)the State Administration Tribunal (SAT) established by the State Administrative Tribunal Act 2004 (WA).

In each of those tribunals, the general rule is that parties must bear their own costs (Victoria, s 109(1); Queensland, s 100; Western Australia, s 87(1)). In each jurisdiction that general rule is subject to specific provisions empowering the tribunal to make costs orders (Victoria, ss 109(2) and (3); Queensland, s 102; Western Australia, ss 87(2) to (4)).

In Victoria and Queensland, that power may be exercised if the tribunal is satisfied that it is fair to do so (Victoria, s 109(3)) or that the interests of justice require an order to be made (Queensland, s 102(1)); in each case the legislation then sets out a non-exclusive list of matters to which the tribunal must have regard in deciding whether to exercise the power. In Western Australia, the SAT is even less confined; it is subject to any provision of an enabling Act, and to a requirement in the exercise of its review discretion to have regard to two specified matters. There are also limits on SAT’s power to award costs other than the costs of a party (s 88). In all three cases, however, the form of the legislation makes it clear that there is a broad power with specific limitations; for instance, the Victorian provisions (from s 109 of the VCAT Act) are as follows:

(1) Subject to this Division, each party is to bear their own costs in the proceeding.
(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to—
...

The ACT provisions are significantly different. There is an apparently broad power, but there are no general legislative guidelines about the exercise of that power. Instead, there is a word indicating that the power is qualified (“However”), then the statement that an order may be made in four specified circumstances. In three of those circumstances, the nature and scope of the orders that may be made are explicitly limited by reference to the circumstances giving rise to the power. In the other case (s 48(2)(c)), a more general discretion is conferred in the circumstances specified, but that discretion is then constrained by requirements not unlike those found in the legislation of the other jurisdictions (particularly Queensland) in relation to the general costs powers conferred in those jurisdictions. As already noted at [52] above, there is no obvious explanation for constraining the discretion conferred by s 48(2)(c) but not providing any guidance for the exercise of any broader costs power intended to be conferred by s 48(1).

A comparison of the ACT legislation with that of Victoria, Queensland and Western Australia suggests that s 48 does not confer a broad costs power of the kind conferred by the legislation of those other jurisdictions; that is, the comparison favours the Narrow costs power meaning for s 48.

Conclusions

As already noted, s 48 is simply not coherent. There is no possible interpretation of it that makes sense of all the words of the section. There are three main competing interpretations of s 48, depending upon which parts of the section are emphasised.

The Broad costs power with Examples meaning is that s 48(1) confers on ACAT a general power to make costs orders, and that s 48(2) is, in effect, a list of suggestions, or examples, of the kinds of orders that might be made. This interpretation gives no meaning to “However”, and raises the question why the putative examples in s 48(2) have not been treated in the same way as examples provided in other parts of the ACAT Act such as s 48(3) or s 56.

The Broad costs power subject to Limits meaning is that s 48(2) identifies the only circumstances in which the broad costs power conferred by s 48(1) is limited, and identifies the limits on those powers. This is the interpretation adopted by ACAT (at [36] and [37] of its judgment).

The Narrow costs power meaning is that s 48(1) confers a costs power that may only be exercised in the circumstances set out in s 48(2).

Each of the second and third possible interpretations requires “However” to carry the entire weight of converting the paragraphs of s 48(2) from mere descriptions of some circumstances in which particular costs orders may be made under the s 48(1) power into either:

(a)descriptions of the only circumstances in which the costs power is limited and of the relevant limits; or
(b)descriptions of the only circumstances in which costs orders may be made and of the only orders that may be made.

In the abstract, it would seem legitimate to prefer the interpretation of a provision that does less violence to the words of the provision (being the Broad costs power with Examples meaning, which requires only that “However” be ignored). However, I conclude that the question of the interpretation of s 48 must be answered by a finding that s 48 confers a narrow costs power on ACAT, being the power to make only the orders specified in s 48(2) and only in the circumstances specified in that provision.

Sections s 48(2)(a) and for policy reasons s 49 are the only provisions of the ACAT Act that directly support an interpretation of s 48 as conferring a narrow costs power; such an interpretation is also supported by the contrasting approach to costs powers found in the legislation establishing the Victorian, Queensland and Western Australian tribunals. However, my conclusion about s 48 relies heavily on non-legislative materials, being the note to s 32 (the Legislation Act 2001 (ACT), s 127 says that such notes are not part of the Act) and the explanations of s 48 found in the extracts from the two Explanatory Statements.

It is concerning that the extracts from the two Explanatory Statements relating to the operation of s 48 of the ACAT Act should have such significance, because to the extent that they purport to simply paraphrase the provisions of the relevant Bill, they should reflect the resulting provisions of the Act. It is hard to understand why the Explanatory Statement material is in each case to an effect that is not clearly replicated in the draft legislation concerned. I do not know whether, in the ACT, an Explanatory Statement is prepared initially for use as instructions for the drafting of the relevant Bill or is prepared only after the Bill is drafted. Whatever the position, it seems that there is no reliable process by which the contents of the Explanatory Statement are compared with the provisions of the draft Bill to ensure that the legislation does what the policy makers, or at least whoever is responsible for the Explanatory Statements, apparently want it to do (see also JH v Director-General, Community Services Directorate [2012] ACTSC 30 at [25] for reference to a similar problem).

Powers under ss 32 and 56

The other questions of law identified at [33] above are as follows:

Question 2: Does ACAT have power to dismiss an application under s 56(d) of the ACAT Act if the application could be dismissed under s 32 of that Act?
Question 3: Does s 48(2)(d) of the ACAT Act apply not only to applications dismissed under s 32 of that Act but also to applications that could have been dismissed under s 32?
Question 4: Are all applications that have become futile therefore frivolous or vexatious for the purposes of s 32 of the ACAT Act?

These questions are relevant in this case only in the context of one of the possible interpretations of s 48. I have explained at [34] above why I propose to consider the arguments put, and offer answers to the questions, despite having determined at [82] above that s 48 of the ACAT Act confers a narrow costs power on ACAT which does not include the power to make the order in favour of Mainore that is challenged in this case.

The provisions

Section 32 of the ACAT Act is set out in the Appendix. In summary, it gives ACAT various powers to deal with an application that it considers is frivolous or vexatious or that has been made by a person who has previously been dealt with as frivolous or vexatious by an Australian court or tribunal. Those powers include, relevantly, the power to dismiss the application. A note to s 32(2) refers to the power under s 48(2)(d) to order the applicant to pay costs in relation to certain applications including the kind of application that was before ACAT in this case.

Section 56 of the ACAT Act is also set out in the Appendix. Headed “Other actions by tribunal”, it confers on ACAT the power to make a variety of orders (with no particular unifying characteristics), including orders for applications to be heard jointly where they relate to similar facts, consent orders or other “necessary or convenient” orders, and orders correcting tribunal orders or otherwise amending or setting aside such orders. ACAT also has a general power in relation to applications, expressed as the power to:

(d)       take any other action in relation to an application—
(i)        that the tribunal considers appropriate; and
(ii)       that is consistent with this Act or an authorising law.

Examples
1an order dismissing a proceeding on the withdrawal of the applicant
2an order dismissing a proceeding for want of prosecution
Note 1The tribunal must observe natural justice and procedural fairness (see s 7).
Note 2A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

The only explicit constraints on this apparently broad power to make any order that ACAT considers appropriate in relation to an application are that ACAT’s action must be “consistent with [the ACAT Act] or an authorising law” (s 56(d)(ii)), and that ACAT must “observe natural justice and procedural fairness” (Note 1 and s 7).

The argument

Counsel for CIC submitted that at [20] and [21] of its judgment ACAT found it had power to dismiss the application under either s 32(2)(b) or s 56(d).

Counsel further noted that one of the cases in which an application may be dismissed under s 56(d) is where the application has been discontinued or withdrawn; from that apparently accurate statement counsel sought to draw the fallacious conclusion that because the application had not yet been discontinued or withdrawn, s 56(d) was not available to ACAT (apparently overlooking the possibility that s 56(d) did not only apply where the application had already been formally discontinued or withdrawn).

There are two examples in s 56 of the orders that may be made under s 56, being orders dismissing a proceeding either on withdrawal of the application or for want of prosecution. Under the Legislation Act, an example is part of the Act (s 126(4)), is not exhaustive (s 132(1)(a)) and may extend but does not limit the meaning of the Act or the particular provision to which it relates (s 132(1)(b))). The examples in s 56 cannot be relied on to limit the scope of s 56(d). I am satisfied that there is no basis in the ACAT Act for finding that s 56(d) only permits dismissal where an applicant has formally withdrawn an application.

Next, counsel for CIC argued:

(a)that Mainore’s application had become frivolous by becoming futile;
(b)that s 32(1) therefore applied to the application; and
(c)that ACAT “therefore was constrained by s 32(2) in disposing of the proceeding”; in other words, ACAT then had, relevantly, only the options of refusing to hear the application under s 32(2)(a) and dismissing it under s 32(2)(b).

It was implicit in this submission rather than explicit in argument that where s 32(1) “applies”, ACAT has no other option (for instance that of dealing with the matter under another provision of the ACAT Act such as s 56), and in particular that the power to dismiss under s 56(d) is not available. The fact that s 32(1) applies “if the tribunal considers” (that is, only after there has been a finding that an application is frivolous or vexatious) seems to have been overlooked. The apparent consequence of CIC’s interpretation, that the power under s 56(d) to dismiss an application is never available unless ACAT has first satisfied itself that it has no power to dismiss the application under s 32, was also not addressed.

There are good reasons to dismiss such an interpretation of ss 32 and 56, and little to support that interpretation.

First, there is nothing in the words of the ACAT Act that would require such an interpretation. There was no basis identified for the written submission on behalf of CIC that if s 32 could apply to Mainore’s application, ACAT “therefore was constrained by s 32(2) in disposing of the proceedings”.

Nor is there a basis for inferring such a constraint from the words of s 32(2), which are that where s 32 applies, ACAT “may ... do 1 or more of the following”. Under s 146 of the Legislation Act, “may”, used in relation to a function, means that “the function may be exercised or not exercised, at discretion”. The Dictionary to the Legislation Act defines “function” as including “authority, duty and power”. That is, s 32(2) appears to confer a power that may be exercised or not at ACAT’s discretion, which would be a sensible approach if in certain circumstances there were also overlapping powers available with different incidents.

Secondly, I can see no reason in policy or common sense to assume that no decision to dismiss an application under s 56(d) should ever be made until ACAT had considered whether it had the power to dismiss the application on the “frivolous or vexatious” ground.

Dismissal of an application on the “frivolous or vexatious” ground has negative, even punitive, consequences. In particular, there is the risk of a costs order against the applicant under s 48(2)(d) (however s 48 is interpreted more generally).

As well, it is not clear whether “being dealt with as frivolous or vexatious” in s 32(1)(b) is shorthand for “having had an application dealt with as frivolous or vexatious” or in fact requires some kind of declaration that the person is frivolous and vexatious (in relation to litigation more generally). If the provision applies to anyone who has once had an application dismissed on that ground, then an applicant whose application is dismissed under s 32 would be at risk of having any future application dismissed under s 32, however apparently well-founded that later application might be.

Even if the reference to having been dealt with as frivolous or vexatious does require a prior declaration or determination in relation to the person rather than just in relation to a prior application by the person, the interpretation contended for by CIC (that is, that the s 32 power must be used if it is available) would have the potential for injustice. A power to act against applicants bringing frivolous or vexatious proceedings is useful and desirable; an inability to act in relation to some applications except on the basis that they should be dealt with as frivolous or vexatious is a very different matter, which has the potential to work injustice and in any case seems entirely unnecessary.

Given the consequences of dismissal on the “frivolous or vexatious” ground, any such dismissal is likely to be more fiercely opposed than a decision to dismiss an application on a more neutral ground such as the one arising in this case, namely that continuing the proceeding had become futile. There is no good reason that I can see for making particular proceedings more fiercely adversarial, and ACAT’s job more difficult, than they need to be, by finding that s 32 must be used if it is available, and there are many good reasons for not reaching such a conclusion, especially having regard to s 6 of the ACAT Act (quoted at [54] above).

Even if a requirement to consider s 32 before using s 56(d) did not generate unnecessary argument, ACAT would, in each case where an application was to be dismissed, have to go through the processes for determining whether the s 32 dismissal power was available and possibly providing some kind of reasons for its conclusion on that question. ACAT would have to do that even where there was a more obvious and less controversial ground for dismissing an application, and even where the respondent was not seeking dismissal under s 32.

I am accordingly satisfied that the ACAT Act does not contain an implied requirement that the dismissal power under s 56(d) cannot be used unless ACAT has considered whether the application can be dismissed under s 32, and has correctly concluded that it cannot.

The conclusion that in a particular case the power to dismiss an application may exist under both s 32 and s 56(d) also largely disposes of the argument put by counsel for CIC that s 32 must have been the real authority for a decision that could have been made under that section even though ACAT specified its reliance on s 56(d).

In written submissions, counsel for CIC put that ACAT’s decision to dismiss was “as a matter of legal reality” made under s 32(2)(b). In support of that argument, counsel referred to authorities for a principle that protects a decision from invalidity if there is a basis for the decision other than the one incorrectly relied on by the decision-maker. For instance in Brown v West (1990) 169 CLR 195, the High Court (Mason CJ, Brennan, Deane, Dawson and Toohey JJ) said at 203 that “the validity of the Tribunal’s determinations is unaffected by mistaking the source of the power to make them”, and see also VAW (Kurri Kurri) Pty Ltd v Scientific Committee (established under s 127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631 at 636-8; [18] – [30]).

Those authorities seem to me to be irrelevant in a case where the decision is available under two provisions and the decision-maker has identified one of them as the source of power for the decision. The principle relied on by CIC does not in my view imply that an otherwise valid decision can or should be assumed to have been made under a different power carrying different consequences; apart from anything else this would leave otherwise unchallengeable decisions in a permanent state of uncertainty arising from a possible future finding that the decision had in fact been made under a different power. I note that different consequences arising from the making of a decision under different heads of power was a factor identified by Bowen CJ in Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 at 10 as a factor telling against upholding a decision not available under the stated head of power but available under another head of power.

As well, a decision under s 32 requires ACAT to “consider” that the application is frivolous or vexatious. To say that a decision expressed to have been made under s 56(d) was really made under s 32 assumes not only that the decision was available under s 32 but also that ACAT adverted to the issues arising under s 32(1) and “considered” that the test was satisfied. There is no reason to accept such a proposition.

Counsel for CIC separately argued that s 32 extends to applications that have become futile through no fault of the applicants; if this were correct (as to which see [114] below), it would be another argument against the proposition that s 32, with its negative or punitive consequences, must be used if it is available.

Absence of formal discontinuance

I note the submission made on behalf of CIC that Mainore’s application was not discontinued before ACAT dismissed it. In the circumstances, I cannot see that this makes any difference; the delay in discontinuing was not apparently related to any intention to persist with the application, but simply to a wish not to let the proceedings terminate until the matter of costs had been resolved.

Counsel for CIC submitted that ACAT decided that it had power to dismiss Mainore’s application under s 32(2)(b) or s 56(d), which in turn implied a finding that the application had become frivolous or vexatious. What ACAT actually said was this:

The Applicant foreshadowed an application to formally discontinue the proceedings, presumably by withdrawing its Application for Review, following the Tribunal’s consideration of the question of costs, which counsel for Applicant, foreshadowed would be made. The Tribunal has power to dismiss the Application pursuant to either section (32)(2)(b), the frivolous and vexatious ground or section 56(d) of the Act, where, for example, the Application for Review is withdrawn. (citations omitted)

In my view, in this paragraph ACAT was simply setting out the dismissal powers in the ACAT Act; the reference to s 56(d) of that Act applying “where, for example, the Application for Review is withdrawn” is more consistent with the paragraph being a general summary of the relevant provisions rather than a specific determination of the applicable provision in the particular case.

Conclusions

For these reasons, and in the absence of anything in the legislation even hinting at a requirement for ACAT to consider s 32 before the s 56(d) power to dismiss is available, I conclude:

(a)that s 32 confers a discretionary power and does not operate to confine the dismissal power in s 56(d) to cases in which ACAT has considered the relevance of s 32 and expressly decided that there is no power to dismiss under that latter section; and
(b)that provisions of the ACAT Act that depend on a “frivolous or vexatious” ground for dismissal are only engaged in relation to applications dismissed explicitly in reliance on s 32, not in relation to applications that arguably could have been dismissed under s 32 if ACAT had reached the state of mind required to exercise the s 32 power.

Scope of s 32

If I am wrong about the interaction of s 32 and s 56(d), then the scope of s 32 remains a live issue, specifically whether “frivolous or vexatious” applications for the purposes of that section include all applications that, at some stage after being made, have become “futile”.

The argument

Counsel for CIC submitted that any proceeding that has become futile thereby becomes “frivolous or vexatious” for the purposes of s 32.

The authorities

Counsel for CIC referred me to several ACT cases in which proceedings that had become futile had been dismissed as frivolous or vexatious. CIC argued that because “frivolous or vexatious” in provisions relevantly similar to s 32 of the ACAT Act had been construed as including proceedings that were or had become futile, all applications that are or become futile are necessarily frivolous or vexatious.

In Save the Ridge and ACT Planning and Land Authority & Anor [2004] ACTAAT 16, an application challenging a development approval was found to be frivolous and vexatious after the holder of the development approval advised that it did not wish to pursue the works proposed under the development approval. The AAT President proposed to make orders setting aside the decision to approve the development, but the applicant refused to consent to such orders because a preliminary question about the AAT’s jurisdiction had not been determined. The AAT then dismissed the application under s 43A of the AAT Act on the ground that the application had become frivolous or vexatious.

In support of its decision to use the s 43A power in that case, the AAT referred to the case of Re Williams and Australian Electoral Commission [1995] AATA 160. In that case, a challenge to the appointment of a particular office-holder of a political party was found to have become futile because a determination of the issues would have had no practical effect on anything (the person’s appointment had operated, if at all, during a period when no functions had been, or had been required to be, performed by that office holder). The Commonwealth Administrative Appeals Tribunal then found that while the proceedings were not initiated vexatiously, they had become vexatious, and proceeded to dismiss them under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth), a provision in similar terms to the relevant parts of s 32 (but apparently unaccompanied by any power to award costs against an applicant on the ground that the application had been dismissed as frivolous or vexatious).

Warren Gardner & Julie Beaver v ACT Planning and Land Authority [2010] ACAT 64 is another case in which an application was found to be frivolous or vexatious, in that case on the basis that it was foredoomed to fail; again, the case involved applicants who sought to pursue their application despite, in that case, its clear lack of merit.

It is notable, however, that in all the cited cases the applicant wished to continue with the application after the proceedings had become or been found to be futile, and despite that futility. It is not surprising that proceedings should be treated as frivolous or vexatious if they are sought to be continued in such circumstances.

Furthermore, it is clear that “futility” carries no necessarily negative implications about the conduct of any party to the litigation concerned. Litigation may become futile without fault on either side; for instance, in Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack & Ors [2003] NSWCA 302, the applicant in relation to costs was one of multiple defendants to a personal injuries claim that became futile when several of the other defendants accepted liability and the case was settled in favour of the respondent (the plaintiff in the original action). The NSW Court of Appeal accepted that the respondent had acted reasonably in joining the applicant as a defendant, and that neither of the parties had been at fault in the way the action was conducted until it became futile as a result of the respondent’s acceptance of an offer of settlement from other defendants.

Conclusions

It may well be that proceedings that are persisted with after they have become futile in turn become frivolous or vexatious; counsel for CIC was correct in her submission that there are cases in which applications that are or have become futile have been found to be frivolous or vexatious. It is not in my view correct to argue from that proposition to the conclusion that all applications that have become futile are necessarily frivolous or vexatious. The proposition “Some As are Bs, therefore all As are Bs”, defies basic logic, not to mention basic common sense. It is in my view telling that no case has been drawn to my attention in which an application that had become futile was dismissed as frivolous or vexatious in the face of the applicant’s willingness to discontinue it.

Given the negative consequences of a finding that an application is frivolous or vexatious, the position contended for on behalf of CIC would offend against both justice and common sense, and as such would need to rely on a very clear legislative direction or authoritative judicial pronouncement; if such exists, it was not drawn to my attention.

The discretionary power argument

The second main argument put on behalf of CIC was that even if ACAT has under s 48 a broader discretionary costs power, that costs power must be exercised in accordance with “well established principles applying to the exercise of a power to award costs”, and that ACAT’s costs order in this case represented an erroneous exercise of its discretionary power.

If s 48(1) does confer a broad power to make costs awards unconfined by s 48(2), then, in the absence of any basis for finding that it is intended to be an unlimited power, that power would be subject to the well-established principles mentioned above. No basis for finding that it is intended to be a completely unfettered power has been suggested, and none occurs to me.

The challenges to ACAT’s discretionary decision involved claims:

(a)that relevant considerations had been ignored and that irrelevant considerations had been taken into account;
(b)that ACAT had made findings of fact for which there was no evidence;
(c)that ACAT had mistakenly characterised CIC’s surrender of its development approval as a surrender in the proceedings brought by Mainore rather than a supervening event rendering Mainore’s application futile; and
(d)that ACAT should not have found in the context of considering a costs order that CIC had engaged in “disentitling conduct”.

I am unconvinced that these claims raise questions of law.

In Oshlack, Gaudron and Gummow JJ at [22] referred to a costs power conferred in general terms, saying:

The terms of s 69(2) contain no positive indication of the considerations upon which the Court is to determine by whom and to what extent costs are to be paid. The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as “the subject matter and the scope and purpose” of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be “definitely extraneous to any objects the legislature could have had in view”. (citations omitted)

Kirby J in that case at [134] made a series of general remarks about the nature of provisions conferring a costs power in general terms, including the following:

3.Against this background, judicial descriptions of a statutory discretion to award costs as “absolute and unfettered”, “unqualified”, “uncontrolled” or “unconfined” cannot be taken at face value. Because the discretion is typically conferred upon a court or tribunal obliged to act judicially, fetters, confinement and controls of a sort are provided by the law. Although appellate courts should avoid the imposition of rigid requirements which would gloss the statute and narrow the discretion afforded to the donees of the statutory power, they retain a function to guide those who are obliged to exercise cost discretions. Such guidance may be afforded by referring in general terms to the considerations which the decision-maker can take into account. Such considerations may be listed for the avoidance of arbitrariness and inconsistency in such decisions. They are not intended to confine the decision-maker to a rigidly mechanical approach. Arbitrariness and inconsistency would be potentially unjust and therefore undesirable. Mechanical rigidity would amount to an abdication of the discretion afforded to the decision-maker in large terms.
4.It is because the general purpose of an order for costs in favour of a successful party is to provide compensation in the form of a partial indemnity for the costs incurred that the ordinary principle observed in civil litigation under the “English rule” (as contrasted to the “American rule”) is that legal costs will usually be ordered in favour of the successful party. Absent special statutory provisions, Australian law has followed this English rule. But the compensatory principle cannot be treated as an absolute rule. Otherwise, the discretion conferred in unqualified terms would indeed be shackled and confined. To permit this would be incompatible with statutory language expressed in such terms. Therefore, although there are “rules” or ordinary principles which will guide the donee of power in the exercise of the discretion, they cannot extinguish the element of discretion. They must not be allowed to harden into rigid or inflexible requirements. (citations omitted)

It is apparent from these comments that it would be a rare case in which a question about the significance of a particular matter in the exercise of a discretionary costs power in that particular case could be answered by setting out a proposition of law, however narrow.

Relevant and irrelevant considerations

The allegedly irrelevant considerations mentioned by ACAT and the allegedly relevant considerations overlooked were in general asserted on behalf of CIC but barely argued. In any case it was not clear to me that a finding that any particular matter was considered, or overlooked, when it should not have been would have made any difference to ACAT’s decision. This is because of the wide range of matters that ACAT took into account, all of which seem to have influenced it in favour of making a costs order against CIC. Furthermore, if I had considered that my power extended to reviewing ACAT’s exercise of a discretionary costs power and possibly re-exercising that power, I would not, on the basis of the submissions made in this case, have been inclined to exercise the discretion in a different way.

I have already indicated (at [28] above) my view that the Supreme Court should not lightly be drawn into reviewing ACAT’s exercise of discretionary powers. It is possible to imagine questions arising in relation to the exercise of discretionary powers that would appropriately be addressed as questions of law, but they do not seem to arise in this case. It is settled law that in exercising a discretionary power, a decision maker must take account of relevant considerations and not take account of irrelevant considerations, and that breaching either of these requirements involves error (House v The King (1936) 55 CLR 499 at 505); however, as indicated by Gaudron and Gummow JJ in the remarks quoted at [128] above, questions whether a particular factual circumstance is relevant or irrelevant in the exercise of a particular kind of discretion in a particular case are unlikely to raise anything properly described as a question of law.

Accordingly, I shall say nothing more about the following matters that were raised in CIC’s notice of appeal in connection with ACAT’s purported exercise of a discretionary costs power:

(a)The relevance of the fact that the applicant had incurred expense, and the quantum of its costs.
(b)The relevance of the motives of a party to the proceeding.
(c)Whether making costs orders in matters that are resolved or become futile shortly before, or upon, or during, the hearing may operate as a disincentive to parties resolving matters at any time subsequent to the early stages of the proceeding (early resolution without hearing being an outcome that s 31 of the ACAT Act empowers ACAT to pursue).
(d)The fact that the party to which ACAT proposed to award costs had been alleged not to have standing to bring the proceeding and that ACAT had not made a determination as to whether that party had standing.
(e)The relevance of whether the proceeding resembled a conventional commercial adversarial dispute.

(f)Whether a party had surrendered a development approval at an unreasonable time, and the absence of an explanation for a party’s failure to surrender its development approval earlier than at the last minute before the scheduled hearing.
(g)The relevance of a party’s failure to provide evidence, or otherwise advise ACAT, that any subsequent development application would address any or all of the matters alleged by another party in the proceedings to have been deficiencies in the surrendered development approval.

Unfounded findings of fact

There is also no need for me to address CIC’s written submission that ACAT made four findings of fact for which there was no evidence, being:

(a)that the appellant surrendered the development approval for a commercial reason;
(b)that the appellant could have taken a decision at any time after the application for review was lodged to surrender the development approval;
(c)that the appellant’s legal representative made a concession that supported a finding that the appellant could have taken a decision to surrender the development approval three months earlier or that the appellant acted unreasonably; and
(d)that the appellant acted unreasonably in not surrendering the development approval at an earlier time, including at any time after the lodgement of the application for review.

This submission was not developed in argument; in particular, there was no attempt to make out the absence of a basis for these findings by reference to the course of the hearing and evidence that was in fact before ACAT. In any case, I cannot see that any of these claims raised questions of law as opposed to questions of the interpretation of evidence.

Surrender or supervening event

CIC argued that ACAT fell into error in declining to characterise CIC’s surrender of its development approval as a “supervening event” for the purposes of considering whether to make a costs order against it. I was not convinced by arguments put on behalf of CIC about the choice between a surrender and a supervening event, but in any case this is clearly, at best, a mixed question of fact and law that is not appropriate to be answered in this appeal.

Disentitling conduct

Similarly, there is no need to address CIC’s argument that ACAT erred in finding “disentitling conduct” on CIC’s part. If disentitling conduct had been relevant at all, then the question whether there was such conduct was again, at best, a mixed question of fact and law and not one to be addressed in this appeal.

Whether leave to appeal should be granted

In O’Donnell I noted at [77] the tests for giving leave for the exercise of a statutorily-limited appeal right:

77. However, in Eastman v CSH, the Court of Appeal had indicated agreement with the views of Lander J in the decision under appeal, David Harold Eastman v Commissioner For Social Housing [2010] ACTSC 71 that different criteria are applicable where leave is required not for an appeal from an interlocutory decision but as a pre-requisite to the exercise of a statutorily-limited appeal right, saying:
57. Here, taking up the Master’s inaccurate paraphrase of the principles in Niemann, [Lander J] said that whether a decision of the tribunal were attended by doubt or the applicant would suffer an injustice if the decision were allowed to stand were not relevant considerations on an application for leave to appeal under s 125 of the Residential Tenancies Act. His Honour stated (at [67]):
The statutory criterion for an application under s 125 which must be made out is whether the applicant can identify a question of law. To obtain leave the applicant also needs to show at least an arguable case that the Tribunal erred in its consideration of that question of law. Finally, an applicant needs to show that if the question of law were determined in the manner contended for by the applicant the decision of the Tribunal might have been different in the sense that it might have been more favourable to the applicant: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 353 and Toohey and Gaudron JJ at 384 in dealing with an “error of law”.

58. The plain intention of the legislature is to provide a filter for appeals from the tribunal. What is tolerably clear from the plain words of the section is that it is insufficient to point to a question of law. Something more is required. We agree with the primary judge that it is necessary for an applicant to demonstrate that he or she has at least an arguable case, that the tribunal has erred in its resolution of a question of law and that the result of the error [sic] would have been more favourable to him or her. Otherwise, it would be futile to grant leave. We are not convinced that whether the applicant would suffer a substantial injustice if the decision were allowed to stand is irrelevant but, absent an arguable case, it will certainly not justify a grant of leave. Nothing in Niemann suggests otherwise. We did not, however, hear full argument on this question and it is unnecessary to resolve it in this case. On either approach, for the reasons which follow, Mr Eastman must fail.

That is, as well as requiring a question of law to be identified, I need to consider:

(a)whether there is at least an arguable case that ACAT erred in its resolution of that question; and
(b)whether the correct resolution of that question would be more favourable to the appellant.

As noted, CIC’s attempt to obtain a review of ACAT’s exercise of a discretionary costs power does not in my view raise questions of law, so there is no need to consider whether to give leave to appeal in relation to that aspect of the appeal.

It is clear that CIC has an arguable case in relation to the questions of law about the operation of the ACAT Act, and that the answers sought by CIC to those questions of law would be more favourable to CIC than the answers reflected in the approach taken by ACAT, and would make a difference to the outcome of the appeal.

Conclusions

First, I have approached this appeal on the basis that if leave is given for an appeal to the Supreme Court on a question of law, the court’s task is to answer the question of law (having formulated it first if necessary,) and then either to refer the matter back to ACAT for determination in accordance with the answer to the question of law or, in appropriate circumstances (see [27] and [28] above), to make the orders necessary to dispose of the matter.

Secondly, I am satisfied that it is appropriate to grant leave to appeal from ACAT in relation to the questions of law I have formulated at [33] above, but not in relation to CIC’s attempt to have ACAT’s discretionary decision reviewed as described at [124] above.

Thirdly, the questions of law, and their answers, are as follows:

Question 1: Does ACAT have power to make costs orders under s 48 of the ACAT Act apart from the power to make costs orders of the kinds specified in s 48(2) in the circumstances specified in s 48(2)?
Answer: No. ACAT’s only powers to make costs orders are found in s 48(2) of the ACAT Act and any other applicable legislative provisions.
Question 2: Does ACAT have power to dismiss an application under s 56(d) of the ACAT Act if the application could be dismissed under s 32 of that Act?
Answer: Yes.
Question 3: Does s 48(2)(d) of the ACAT Act apply not only to applications dismissed under s 32 of that Act but also to applications that could have been dismissed under s 32?
Answer: No.
Question 4: Are all applications that have become futile therefore frivolous or vexatious for the purposes of s 32 of the ACAT Act?
Answer: No.

Finally, although the appellant has not succeeded on all grounds argued, it has succeeded on the primary and decisive question. I see no reason why the appellant should not have its costs of the appeal.

Orders

Accordingly:

(a)leave is granted to appeal on four specified questions of law;
(b)the questions of law are answered as set out at [144] above;
(c)the appeal is upheld;
(d)the order of ACAT that the appellant pay the respondent’s costs of the proceeding in ACAT is set aside;
(e)the respondent is to pay the appellant’s costs of this appeal; and
(f)the parties will be heard about any other orders required.

I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Sameena Ahmad
Date:

Counsel for the appellant: Ms M Allars

Solicitor for the appellant:  King & Wood Mallesons
Counsel for the first respondent:                   [Submitting appearance only]
Solicitor for the first respondent:                   ACT Government Solicitor
Counsel for the second respondent:              Mr D Mossop
Solicitor for the second respondent:              Meyer Vandenberg Lawyers
Counsel for the third respondent:                  [Submitting appearance only]
Solicitor for the third respondent:                 ACT Civil and Administrative Tribunal
Date of hearing:  16 December 2011
Date of judgment:  31 May 2013

Appendix – Relevant provisions of ACT Civil and Administrative Tribunal Act 2008 (ACT)

Frivolous and vexatious applications
(1)This section applies if—
(a)the tribunal considers an application is frivolous or vexatious; or
(b)a person who has made an application to the tribunal has been dealt with as frivolous or vexatious by a court or tribunal in Australia.
(2)The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application;
(b)dismiss the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i)within a stated period of time; or
(ii)without the leave of the tribunal.
NoteIf the application is for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, the tribunal may also order the applicant to pay costs (see s 48(2)(d)).
(3)The tribunal may make an order under subsection (2) on its own initiative or on application by a party.

Costs of proceedings
(1)The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.
(2)However—
(a)if the tribunal decides an application in favour of the applicant—the tribunal may order the other party to pay the applicant the filing fee for the application; or
(b)if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or
(c)subject to section 49, if a party to the application contravenes an order of the tribunal—the tribunal may order the party to pay the costs or part of the costs of the application to the other party; or
(d)if the application is an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, and the tribunal makes an order under section 32(2) (Frivolous and vexatious applications)—the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application.
(3)For subsection (2)(d), reasonable costs of the other party arising from the application include reasonable legal costs but do not include holding costs.
Examples—holding costs
· interest and lender imposed charges associated with a loan
· costs of engaging workers and subcontractors and hiring equipment for a development
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Costs for contravening an order
(1) The tribunal may award costs against a party for contravening an order under section 48(2)(c) only if satisfied that it is in the interests of justice to do so.
(2)In deciding whether it is in the interests of justice to award costs, the tribunal must consider the following:
(a) whether the contravention was deliberate or could easily have been avoided;
(b)whether (and if so, the extent to which) the contravention has affected the tribunal’s ability to hear the application promptly;
(c)the importance to the community of people being able to afford to bring applications to the tribunal.
(3) The tribunal may consider any other relevant matter.
(4)Costs are payable in accordance with the scale of costs in the rules under the Court Procedures Act 2004 applying in relation to the Supreme Court.

Other actions by tribunal
The tribunal may, by order—
(a)hear an application jointly with another application that arises from the same or similar facts; or
(b)make other orders with the consent of the parties to the application or as the tribunal considers necessary or convenient; or
Example
an order dismissing a proceeding with the consent of the parties to the proceeding
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(c)amend or set aside a tribunal order if—
(i)the order was made after hearing an application in the absence of a party; or
(ii)the order is in error in relation to an amount or the name or address of a party, and the tribunal proposes to amend or set aside the order only to correct the error; or
(iii)extraordinary circumstances make it appropriate to amend or set aside the order; or
(d)take any other action in relation to an application—
(i)that the tribunal considers appropriate; and
(ii)that is consistent with this Act or an authorising law.
Examples
1an order dismissing a proceeding on the withdrawal of the applicant
2an order dismissing a proceeding for want of prosecution
Note 1The tribunal must observe natural justice and procedural fairness (see s 7).
Note 2A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

Table 5051 Courts and tribunals that may be appealed from
column 1 item	column 2 court or tribunal	column 3 constitution of Supreme Court for appeal	column 4 law appealed under
1	ACT civil and administrative tribunal	judge or master	ACT Civil and Administrative Tribunal Act 2008, s 83 (for appeals only) and s 86 Mental Health (Treatment and Care) Act 1994, s 141
2	adjudicator	judge or master	Building and Construction Industry (Security of Payment) Act 2009, s 43
3	admissions board	Full Court or judge	Legal Profession Act 2006, s 25
4	licensing body, bar council or relevant council	Full Court	Legal Profession Act 2006, s 81
5	licensing body or relevant council	judge	Legal Profession Act 2006, s 207, s 239 (4), s 249 (5), s 514 and s 589 (4)
6	Magistrates Court	judge or master	Domestic Violence and Protection Orders Act 2001, s 79 Domestic Violence and Protection Orders Act 2008, s 97 Health Records (Privacy and Access) Act 1997, s 32 (1) Leases (Commercial and Retail) Act 2001, s 155 Magistrates Court Act 1930, s 274 Victims of Crime (Financial Assistance) Act 1983, s 61
7	Magistrates Court	judge	Magistrates Court Act 1930, s 207 (1) (a)