Graham v Western Australian Planning Commission
[2014] WASCA 234 (S)
•9 FEBRUARY 2015
GRAHAM -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASCA 234 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 234 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:90/2013 | ON THE PAPERS | |
| Coram: | MARTIN CJ BUSS JA BEECH J | 9/02/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Respondent pay appellants' costs of the appeal, to be taxed if not agreed No order as to costs of the State Administrative Tribunal proceedings | ||
| B | |||
| PDF Version |
| Parties: | NEIL ROBERT GRAHAM VALMAI EVELYN GRAHAM MANDURAH ENTERPRISES PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Costs Successful appeal from decision of State Administrative Tribunal Costs of proceedings before the Tribunal Turns on own facts |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 87(1), s 105 |
Case References: | Graham v Western Australian Planning Commission [2014] WASCA 234 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GRAHAM -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASCA 234 (S) CORAM : MARTIN CJ
- BUSS JA
BEECH J
- VALMAI EVELYN GRAHAM
First Appellants
MANDURAH ENTERPRISES PTY LTD
Second Appellant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUSTICE J A CHANEY (PRESIDENT)
Citation : WESTERN AUSTRALIAN PLANNING COMMISSION and GRAHAM & ORS [2013] WASAT 112
File No : DR 190 of 2012
Catchwords:
Costs - Successful appeal from decision of State Administrative Tribunal - Costs of proceedings before the Tribunal - Turns on own facts
Legislation:
State Administrative Tribunal Act 2004 (WA), s 87(1), s 105
Result:
Respondent pay appellants' costs of the appeal, to be taxed if not agreed
No order as to costs of the State Administrative Tribunal proceedings
Category: B
Representation:
Counsel:
First Appellants : No appearance
Second Appellant : No appearance
Respondent : No appearance
Solicitors:
First Appellants : Norton Rose Fulbright Australia
Second Appellant : Norton Rose Fulbright Australia
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Graham v Western Australian Planning Commission [2014] WASCA 234
1 REASONS OF THE COURT: For reasons published earlier,1 this court unanimously granted leave to appeal from the decision of the State Administrative Tribunal (the Tribunal) dismissing the appellants' application to strike out compensation proceedings which had been commenced in the Tribunal by the respondent, set aside the Tribunal's decision and struck out the proceedings in the Tribunal relating to compensation for the taking of parts of Lots 7, 8 and 30, and by a majority, remitted the matter to the Tribunal for further consideration of the application to strike out the proceedings in the Tribunal dealing with the compensation payable for the taking of Lot 49. The parties agree that the respondent should be ordered to pay the appellants' costs of the appeal, to be taxed if not agreed. However, they disagree as to whether the court should make any order with respect to the costs of the proceedings before the Tribunal and, if so, as to what those orders should be. Directions were made for the exchange of written submissions on those issues and to the effect that they be determined on the papers. These are our reasons for concluding that no order should be made by this court with respect to the costs of the proceedings before the Tribunal.
The appeal
2 The long and convoluted history of the respondent's taking of the appellants' land, and our reasons for concluding that the Tribunal lacked jurisdiction to determine the compensation payable for the taking of what we described as New Lots 7, 8 and 30 are contained in our earlier reasons and need not be restated. A majority of the court ordered that the application to strike out the proceedings with respect to the determination of compensation for the taking of Lot 49 be remitted to the Tribunal for further consideration.
The parties' positions with respect to the costs of the proceedings in the Tribunal
3 The appellants submit that this court should exercise its powers to make any orders which could have been made by the Tribunal2 to order that the respondent pay the appellants' costs of the proceedings in the Tribunal in relation to the application to strike out the proceedings relating to the determination of the compensation payable for the taking of New Lots 7, 8 and 30, and that their costs should be taxed by reference to the scale applicable to the proceedings in the Supreme Court, rather than the scale applicable to proceedings in the Tribunal. They accept that although the Tribunal is a jurisdiction in which costs are not ordered as a matter of course or general practice, this is a case in which costs should be ordered because they were ultimately successful in establishing that the Tribunal lacked jurisdiction to determine the compensation payable in respect of the taking of New Lots 7, 8 and 30, essentially for the reasons which they advanced to the Tribunal, and further rely upon what is said to be the respondent's rejection of an offer to resolve the application before the Tribunal on the basis that proceedings be commenced in the Supreme Court by consent. They further submit that the complexity of the issues raised in the proceedings before the Tribunal justifies an order for taxation of those costs by reference to the scale applicable to Supreme Court proceedings, rather than the scale applicable to proceedings in the Tribunal.
4 The respondent asserts that it is premature to make any order with respect to the costs of the proceedings before the Tribunal, given that the application to strike out the proceedings with respect to Lot 49 remains to be determined, and that it is preferable for the Tribunal to itself exercise any jurisdiction to make orders with respect to the costs of the proceedings after that application has been determined, by reference to the entirety of the proceedings before the Tribunal. The respondent further submits that, contrary to the appellants' submission, the propositions upon which the appellants were ultimately successful on appeal were not put to the Tribunal, and that there is no reason why the scale of costs applicable to proceedings in the Tribunal should not be applied. The respondent further submits that if this court is to exercise the power to make orders with respect to the costs of the proceedings in the Tribunal, the appropriate order is that there be no order with respect to those costs.
Disposition
5 In our view there are four reasons why this court should not exercise its power to make orders with respect to the costs of the proceedings before the Tribunal.
6 First, the proceedings before the Tribunal have not been completed. Although the legal issues relating to the jurisdiction of the Tribunal with respect to the taking of Lot 49 are distinct from the legal issues relating to the Tribunal's jurisdiction with respect to the taking of the other lots, for reasons which we have set out, the applications to strike out the proceedings relating to all four lots were heard simultaneously and are plainly related. The ultimate disposition of the application to strike out the proceedings with respect to the taking of Lot 49 may have an impact upon the appropriate orders made with respect to the costs of the application to strike out the proceedings relating to the taking of New Lots 7, 8 and 30. For that reason alone it is preferable to leave the question of the costs of the proceedings before the Tribunal to be determined by the Tribunal after all related proceedings before the Tribunal have been resolved.
7 Second, the Tribunal is not a jurisdiction in which costs are ordered as a matter of course.3 The principles applicable to any departure from that general practice, and the application of those principles to the circumstances of any proceedings before the Tribunal are matters best determined by the Tribunal, having regard to its policies and practices, rather than by this court.
8 Third, there is a contentious issue as to the extent to which the propositions which ultimately found favour in this court were advanced in the course of the proceedings before the Tribunal. That also is a matter best determined by the Tribunal rather than this court.
9 Fourth, there is a contentious issue between the parties as to the scale properly applied to any assessment of costs payable to the appellants in respect of the proceedings before the Tribunal. That again is a matter best determined by the Tribunal by reference to its policies and practices, rather than by this court.
10 For these reasons there will be an order that the respondent pay the appellants' costs of the appeal, to be taxed if not agreed. The question of the costs of the proceedings before the Tribunal will be remitted to the Tribunal for its consideration and determination.
1Graham v Western Australian Planning Commission [2014] WASCA 234 (Reasons).
2State Administrative Tribunal Act 2004 (WA), s 105.
3State Administrative Tribunal Act, s 87(1).
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