Dumbleton and Anor and Town Of Bassendean
[2005] WASAT 145 (S)
•28 JUNE 2005
DUMBLETON & ANOR and TOWN OF BASSENDEAN [2005] WASAT 145 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 145 (S) | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:389/2005 | 25 & 26 MAY 2005 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) MR D R PARRY (SENIOR MEMBER) DR B DE VILLIERS (MEMBER) | 28/06/05 | |
| 19/08/05 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for payment of costs dismissed | ||
| B | |||
| PDF Version |
| Parties: | SHELDON LLOYD DUMBLETON JANE PALMER TOWN OF BASSENDEAN |
Catchwords: | Practice and procedure Costs Town planning Additional work by expert witness necessitated by reason of amended swept path plan provided during hearing Whether costs of additional work should be awarded |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 87 |
Case References: | Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 Dumbleton &Anor v Town of Bassendean [2005] WASAT 145 Nil |
Orders | 1. Application for costs dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : DUMBLETON & ANOR and TOWN OF BASSENDEAN [2005] WASAT 145 (S) MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT)
- MR D R PARRY (SENIOR MEMBER)
DR B DE VILLIERS (MEMBER)
DECISION : 19 AUGUST 2005 FILE NO/S : DR 389 of 2005 BETWEEN : SHELDON LLOYD DUMBLETON
- JANE PALMER
Applicants
AND
TOWN OF BASSENDEAN
Respondent
Catchwords:
Practice and procedure Costs - Town planning - Additional work by expert witness necessitated by reason of amended swept path plan provided during hearing - Whether costs of additional work should be awarded
(Page 2)
Legislation:
State Administrative Tribunal Act 2004 (WA), s 87
Result:
Application for payment of costs dismissed
Category: B
Representation:
Counsel:
Applicants : Mr P N Burke
Respondent : Mr P L Wittkuhn
Solicitors:
Applicants : Hardy Bowen
Respondent : McLeods
Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53
Dumbleton &Anor v Town of Bassendean [2005] WASAT 145
Case(s) also cited:
Nil
(Page 3)
Introduction
1 The applicants were successful in an application before the Tribunal for approval to construct eleven two-storey and two-single storey grouped dwellings at Lot 301 (No 1) Anzac Terrace, Bassendean (the site): see Dumbleton & Anor and Town of Bassendean [2005] WASAT 145. During the course of the hearing of that matter, the applicants produced an amended plan showing the anticipated swept path for rubbish trucks servicing the proposed development. The applicants’ expert had produced that amended plan because an earlier plan which the applicants had relied upon had assumed incorrect dimensions for the rubbish trucks used by the respondent. The actual trucks are longer than had originally been assumed.
2 The respondent also called a traffic expert who had previously assessed the applicants’ original plan. The experts were called on the afternoon of the first day of hearing to give their evidence concurrently. Because of the production of the amended plan, it was necessary for the respondent’s engineer, Mr E Ryke, to consider it overnight. That work was done, and Mr Ryke and the applicants’ traffic engineer, Mr D Veal, resumed their concurrent evidence on the second morning of the hearing.
The respondent’s claim for costs
3 Following delivery of the Tribunal’s reasons and orders approving the proposed development, the respondent sought an order that the applicants pay its costs in relation to the extra work necessitated by the late production of the amended swept path plan. In short, the respondent contends that the additional work would not have been necessary had the correct rubbish truck dimensions been used by Mr Veal in his original diagram.
The circumstances of the extra work
4 The difference in the approach between the two experts emerged during the course of the hearing. When the two experts were called to give evidence on the afternoon of the first day of hearing, it became apparent that the precise dimensions and configuration of the rubbish trucks utilised by the respondent needed to be ascertained. Their evidence was adjourned to enable the respondent’s employees to be contacted so
(Page 4)
- that the exact dimensions of the trucks could be ascertained and a proper analysis of the swept paths of those vehicles undertaken by both experts.
5 These are matters which, had the experts been directed to confer in advance of the hearing, would have been ascertained and substantially resolved prior to hearing. Where, as in this case, the Tribunal had not directed prior consultation between the experts, it is not uncommon for new information to emerge during a hearing which requires further assessment by the experts. That is why the Tribunal is now moving to require pre hearing conferral by experts in most cases before it.
6 In this case the process of conferral of the experts during the hearing, their reworking of their swept path assessments, and their concurrent evidence led to agreement on many of the traffic issues which arose in the consideration of the matter, and identified with clarity the points upon which they disagreed and their reasons for disagreement.
7 There is nothing particularly unusual about the course of events that occurred in this case. Both Mr Veal and Mr Ryke approached their roles as expert witnesses in an appropriate manner. That is, they applied their expertise objectively with a view to assisting the Tribunal to reach the correct and preferable decision in relation to the matters within their expertise. The fulfilment of that function commonly requires ongoing assessment and re-assessment of the expert opinion as new facts or proposals emerge which might be relevant to the question of expertise in issue in the proceedings. This is such a case.
Should costs be awarded?
8 Section 87(1) requires that parties bear their own costs in a proceeding of the Tribunal. There is a discretion under s 87(2) for the Tribunal to order the payment by a party of all or any of the costs of another party. The applicant submits, and we agree, that the discretion under s 87(2) is a broad one. Section 87(4) lays down some matters to which the Tribunal is required to have regard when exercising its discretion as to costs in the review jurisdiction. Those matters have no application to this case. Section 87(4) does not, however, limit the circumstances in which a costs order might be made: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53.
9 In this case, what occurred in relation to additional work done by the experts during the course of the hearing was little more than a step in the ordinary process of resolution of points of difference between the experts. We do not consider that the events as they transpired constitute sufficient
(Page 5)
- reason to depart from the ordinary position of the parties bearing their own costs.
10 For those reasons, the respondent’s application for an order that the applicants pay a portion of its costs is dismissed.
I certify that this and the preceding [10] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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