ex parte Hobart City Council; Hobart City Council v Triffett

[2001] TASSC 139

[2001] TASSC 139

CITATION:R and Resource Management and Planning Appeal Tribunal;  ex parte Hobart City Council

Hobart City Council v Triffett & Anor [2001] TASSC 139

PARTIES:  R
  v

RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

HOBART CITY COUNCIL;  ex parte

and

HOBART CITY COUNCIL
  v
  TRIFFETT, Dale Lawrence
  STAWILTON NO 110 PTY LTD (ACN 009 589 039)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  M244/2001

LCA 64/2001

DELIVERED ON:  7 December 2001
DELIVERED AT:  Hobart
HEARING DATES:  14 November 2001
JUDGMENT OF:  Evans J

CATCHWORDS:

Procedure - Costs - Jurisdiction - General - Jurisdiction as to costs of application for costs - Meaning of "costs of an appeal".

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s28(1).

The Federal Commissioner of Land Tax v Jowett (1930) 45 CLR 115, applied.

Aust Dig Procedure [548]

REPRESENTATION:

Counsel:
           Appellant:  A C R Spence
           First and Second Respondents:   D R Armstrong  
Solicitors:
           Appellant:  Page Seager
           First and Second Respondents:   Don Armstrong

Judgment Number:  [2001] TASSC 139
Number of Paragraphs:  12

Serial No 139/2001
File Nos  M244/2001
         LCA 64/2001

THE QUEEN v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL;  EX PARTE HOBART CITY COUNCIL and
HOBART CITY COUNCIL v DALE LAWRENCE TRIFFETT and
STAWILTON NO 110 PTY LTD (ACN 009 589 039)

REASONS FOR JUDGMENT  EVANS J
  7 December 2001

1. By these proceedings, the Hobart City Council challenges a ruling of the Resource Management and Planning Appeal Tribunal ("the Tribunal"), that its power to make an order for costs in relation to an appeal does not extend to the costs of its hearing of the application for the costs order.

1. The Tribunal having upheld appeals against the approval of the development of a helicopter landing pad on Kings Pier Marina, Franklin Wharf, Hobart, a number of applications were made for costs and dealt with by the Tribunal constituted by its Chairman.  Following a lengthy hearing, the Chairman published detailed reasons for the Tribunal's decision.  Those reasons include the following excerpt which explains the Chairman's reasons for concluding that the Tribunal's authority in relation to costs did not extend to the costs of the application for the same:

"25It was contended for all parties other than Mr Triffett and Stawilton that the Tribunal had jurisdiction, in making its order in relation to the costs of the appeal, to make an order with respect to the costs of the applications for costs themselves. That position was disputed on behalf of Mr Triffett and Stawilton.

26Section 28 of the Resource Management and Planning Appeal Tribunal Act 1993 imposes the Tribunal’s duty, and gives its’ power, to make orders in relation to the costs of an appeal. It relevantly reads:

'28 (1)The Appeal Tribunal must make such orders in relation to the costs of an appeal as it thinks fit and in making such orders must take into account -

(a)       the result of the appeal; and

(b)whether a party has raised frivolous or vexatious issues at the hearing;

(c)whether any party has unnecessarily or unreasonably prolonged the hearing or increased the costs of it; and

(d)       the capacity of the parties to meet an order for costs.

(2)If the Appeal Tribunal is of the opinion that an appeal is frivolous or vexatious, the Appeal Tribunal must dismiss the appeal and direct the appellant to pay an amount determined by the Appeal Tribunal as being the costs of the appeal and the costs of any other party to the appeal.

……'

27Two of the factors to be taken into account are the result of the appeal and the capacity of the parties to meet an order for costs. The result of the appeal is not known until the appeal is determined. The capacity of the parties to meet an order for costs is an issue not normally relevant to the hearing and determination of the merits of an appeal. The determination of the appeal by the Tribunal under Section 23 of the above Act involves making a decision in writing affirming, varying or setting aside the decision appealed against. There is a requirement to notify each party to the appeal of the Tribunal’s decision as soon as practicable after making its decision. Under Section 24 of the Act the Tribunal must give written reasons for its determination of an appeal. All of those provisions relating to the hearing and determination of an appeal, and the requirements placed upon the Tribunal with respect to those actions, are provided for separately in the Act. Section 28 is a specific provision relating to costs of an appeal. When Section 28 refers to the result of the appeal, it can only be referring to the decision upon the appeal, and the effect of the decision. To take account of the decision it is necessary to look back at the decision. The jurisdiction with respect to costs under Section 28 (1) is therefore one which the Act envisages as being exercised after the appeal has had a result, that is after it has been determined.

28Section 28(1) of the Act in its opening part uses the words 'in relation to the costs of an appeal' and in sub sub-section (a) refers to 'the result of the appeal'. There is nothing in the section which indicates that the words 'the appeal' within each of those two parts of Section 28(1) should be given different constructions. Nor is any reason apparent from a consideration of the remainder of Section 28 or of the other sections of the Act, apparent why those words should be given different constructions. The necessary conclusion is therefore that when Section 28(1) refers to 'the appeal', it refers to an appeal which has had a result, which has been determined.

29In the present case [the applications for costs were] … made at a time when the ‘appeal’, within in the meaning of Section 28, had been determined and was therefore complete. The Tribunal in exercising its jurisdiction pursuant to Section 28 was exercising a jurisdiction, in this case, separate to its jurisdiction to hear and determine the ‘appeal’.

30The extent of the Tribunal’s jurisdiction under Section 28 is provided by that section. It is expressed to be a power to make such orders in relation to 'the costs of an appeal'. It is not expressed to be a power to make orders in relation to the costs of proceedings related to, or ancillary to, or consequential upon an appeal, such as the power to make an order as to costs.

31It was contended for the applicants for costs that the compensatory role of costs would in part be thwarted if the above interpretation were adopted. That would be in a case where significant issues arose with respect to costs, and resulted in the incurring of significant additional costs in exploring those issues. In such a case the successful party of an application for costs would not be compensated for the costs of obtaining the costs order. While that may be a result in a particular case, it is difficult to see how that circumstance can effectively displace the apparently consistent meaning of the words 'the appeal' within Section 28.

32In any event, in the light of the requirement made upon the Tribunal by Section 16(1)(b) of the Act, that the Tribunal conduct appeals with 'as little formality and technicality, and as much expedition, as a proper consideration of the matters before the Tribunal permits', it is difficult to imagine that the legislature envisaged such substantial proceedings with respect to costs, that costs of such proceedings would themselves become an issue. Specifically it is hard to envisage, in the context of the latter provision, that costs proceedings extending over a number of days in which parties went to the length of commissioning transcripts of those costs proceedings, and of which the costs may well have exceeded those of the appeal itself, would be involved.

33The costs of the appeal the subject of this costs decision therefore do not include the costs of and incidental to these applications for costs."

1. It is trite that the power of a body such as the Tribunal to order costs is governed by the terms of the statute which creates it.  As was observed by the Full Court in Wyatt v Albert Shire Council (1986) 61 LGRA 116 at 119:

"The power to award costs of proceedings is entirely the creation of statute.  Under the general law there was no power of awarding costs.  This was true in the common law courts and apparently also in equity:  see Re Birkman;  Ex parte Pickering (1860) 1 QSCR 14 at 15 per Lutwyche J. What is more important, it is equally true of tribunals that are statutory in origin:  see R v Justices of South Brisbane;  Ex parte Zagami (1901) 11 QLJ 81 at 83 per Griffith CJ speaking on behalf of the Full Court."

1. The Act, s28(1), the provision which empowers the Tribunal to make orders in relation to the costs of an appeal, is unusual insofar as it makes it mandatory for the Tribunal to make an order for costs, and it requires that in doing so, the Tribunal take into account the capacity of the parties to meet an order for costs. Whilst those requirements are unusual, there is nothing out of the ordinary about the terms in which the power to make orders for costs is granted, that is, a power to "make such orders in relation to costs of an appeal as it thinks fit". This is a straightforward grant of the power to make orders as to the "costs of an appeal". The grant can be compared with the power conferred on this Court "to award costs in all causes", Supreme Court Civil Procedure Act 1932, s12(1), and the power conferred on the Workers Rehabilitation and Compensation Tribunal to "make such order as to costs as it considers appropriate in any proceedings before it", Workers Rehabilitation and Compensation Act 1988, s59(1).

1. As to what is encompassed by the word "costs" in the context of legislation conferring a power to award costs in relation to a proceeding, it has long been recognised that the costs of a proceeding cover matters incidental to that proceeding.  The Arbitration Act 1889 (UK), left "the costs of the reference and award" to the discretion of the arbitrator.  As to that expression, InRe Knight and Tabernacle Permanent Building Society [1892] 2 QB 613 at 620, Bowen LJ, said:

"There is a provision in the Arbitration Act, 1889, that the costs of the reference and award shall be in the discretion of the arbitrators or umpire.  I think the legislature in framing this clause of the Arbitration Act, 1889, must have meant to include all the costs which would have been included by the well-known phrase applicable to such matters, 'costs of and incidental to the reference and award'."

1. This passage was quoted with favour in The Minister for Home and Territories v Teesdale Smith and Others (1924) 35 CLR 120 at 130, where Isaacs ACJ and Starke J said:

"It thus appears that the two phrases 'costs of' and 'costs of and incidental to,' when used with respect to an arbitration of this nature, cover the same ground …"

See also Ballantyne and Another v Electricity Trust of South Australia(SA) (1994) 62 SASR 133, Legoe J at 144.

1. Longstanding authorities recognise that the costs of a proceeding include the costs of matters sufficiently connected to the proceeding to be recognised as an incident of it.  In Gordon & Gotch (Australasia) Ltd v Cox (1923) 32 CLR 465 at 467, Starke J held that an appellant's costs of a preliminary hearing to obtain special leave to appeal were covered by an order for the costs of the appeal made following the hearing of the appeal. In The Federal Commissioner of Land Tax v Jowett (1930) 45 CLR 115, Isaacs CJ, Gavan Duffy and Starke JJ, held at 120, that where an order for costs of an appeal had been made "the successful party may according to circumstances be justly allowed not only subsequent costs, but also costs of prior proceedings, which on taxation or review are considered sufficiently connected with the appeal as to be regarded as incidental to it".

1. For many years it has been accepted without controversy, that an order for the costs of a proceeding includes the costs of subsequent matters such as attending to receive the decision, applying for an order for costs, itemising the costs and proving or taxing the costs. Against this background, I am satisfied that if the legislature had intended that the order for costs the Tribunal was empowered to make by the Act, s28(1), was to have a more narrow scope than that which is ordinarily given to an order for costs, the legislature would have made this plain. It did not do so. Whilst the legislature imposed some unusual requirements on the Tribunal insofar as it made it mandatory for the Tribunal to make an order for costs and, in doing so, to consider the capacity of the parties to meet the order, it did not give any indication that the meaning to be attributed to the word "costs" was to be other than its ordinary meaning in the context of legislation granting a power to order costs.

1. In reaching his conclusion that the Tribunal did not have jurisdiction to make an order for costs which covered the costs of the application for that order, the Chairman placed considerable emphasis on the fact that the appeal to which the order related had been determined at the time of the application.  In my respectful view, the Chairman's focus on this aspect of the matter led him into error insofar as it distracted him from paying due regard to occurrences prior to, and subsequent to a proceeding, the expenses of which are ordinarily recognised as being a cost of a proceeding.

1. My decision is based on the meaning I attribute to the phrase "costs of an appeal".  It should not, however, be overlooked that the power of the Tribunal under consideration is the power to make such orders "in relation to" the costs of an appeal as it thinks fit.  The expression "in relation to" is an expression of wide import, Foord v Whiddett & Anor (1985) 60 ALR 289, Sheppard J at 282. Insofar as that expression bears on the meaning to be given to the subject matter of the grant of power, that is, the "costs of an appeal", it widens and does not confine the meaning.

1. I hold that the Tribunal's power to make an order for the costs of an appeal covers the costs of matters prior to and subsequent to the determination of the appeal which are sufficiently connected to the appeal to be regarded as incidental to it and that this includes the costs of any application to the Tribunal for an order for the costs of an appeal. 

1. I order that the decision of the Tribunal that the costs of the appeal do not include the costs of and incidental to the applications for costs be quashed, and that the issue as to these costs be remitted for the reconsideration of the Tribunal.