Hayward v Forest Practices Tribunal (No 3) - [2004] TASSC 14

[2004] TASSC 14

CITATION: Hayward & Anor v Forest Practices Tribunal & Anor (No 3) [2004] 14

PARTIES: HAYWARD, John
HAYWARD, Lynn

v
FOREST PRACTICES TRIBUNAL and
PRIVATE FORESTS TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M375/2002

M208/2003

DELIVERED ON:  9 March 2004
DELIVERED AT:  Hobart
HEARING DATE:  9 December 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Procedure - Costs - Departing from the general rule - Order for costs on indemnity basis - Conduct of State instrumentality during litigation - Special or unusual circumstances.

Law Society of Tasmania v Richardson (No 2) [2003] TASSC 71; Re Wilcox; Ex p Venture Industries (No 2) (1996) 72 FCR 151; Burnie Port Corporation Pty Ltd v Bank of Western Australia Limited & Anor (2003) 11 Tas R 249, considered.
Aust Dig Procedure [574]

Procedure - Costs - General rule - Costs follow the event - Costs of issues.
Burnie Port Corporation Pty Ltd v Bank of Western Australia Limited & Anor (2003) 11 Tas R 249, followed.
Aust Dig Procedure [557]

REPRESENTATION:

Counsel:
           Applicants:  R A Browne
           Respondents:  P Turner
Solicitors:
           Applicants:  FitzGerald & Brown
           Respondents:  Director of Public Prosecutions

Judgment Number: [2004] TASSC 14
Number of paragraphs: 7

Serial No 14/2004
File Nos M375/2002
M208/2003

JOHN HAYWARD and LYNN HAYWARD
v FOREST PRACTICES TRIBUNAL
and PRIVATE FORESTS TASMANIA (NO 3)

REASONS FOR JUDGMENT SLICER J

9 March 2004

The history of these proceedings which now gives rise to costs applications is set out in Hayward & Anor v Forest Practices Tribunal & Anor [2003] TASSC 60 and Hayward & Anor v Forest Practices Tribunal & Anor (No 2) [2003] TASSC 102. By consent, the proceedings against the Minister in M208/2003 have been dismissed, leaving the issue of costs to be determined.

The applicants successfully challenged the decision of the Forest Practices Tribunal ("the Tribunal") which, in turn, had upheld an earlier decision of the Forest Practices Board ("the Board") to recommend that certain land be declared a private timber reserve. The Tribunal pronounced its decision on 31 October 2002 and the challenge made in accordance with the provisions of the Judicial Review Act 2000 ("the Act") by originating application filed on 29 November 2002. The applicants neither sought nor obtained an interim stay as permitted by the Act, s26(2)(a). The hearing of the review commenced on 4 February 2003 and resumed on 16 and 17 June 2003 when the decision was reserved. On 14 July 2003 (before the decision was pronounced), counsel advised that on 20 March 2003 the Board had recommended to the Governor-in-Council that the relevant land be declared a private timber reserve. The land was so declared and notice given in the Gazette on 2 April 2003. No reason was given to this Court through counsel as to why, notwithstanding the review proceedings, the recommendation was made. Three possibilities suggest themselves, namely bureaucratic oversight, the seeking of advantage, notwithstanding knowledge of the existence of the review proceedings, or a belief…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] TASSC 14
Decision Date: 9 March 2004

CaseChat Overview and Summary

In Hayward v Forest Practices Tribunal, the applicants, John and Lynn Hayward, sought a judicial review of a decision made by the Forest Practices Tribunal and the Forest Practices Board to declare certain land as a private timber reserve. The respondents were the Forest Practices Tribunal and Private Forests Tasmania. The applicants argued that the decision was unlawful and sought various orders, including a declaration that the decision was invalid and an order for costs.

The court had to decide whether the applicants were entitled to costs on a party/party basis and, if so, whether any of those costs should be taxed on an indemnity basis. The court also had to determine whether the applicants were entitled to costs in the separate proceedings that they brought against the Minister.

The court found that the applicants were entitled to costs on a party/party basis for the proceedings up to the date of the delivery of the reasons for judgment. The court also found that the applicants were entitled to costs on a solicitor/client basis for the proceedings after the delivery of the reasons for judgment. The court further found that the applicants were entitled to costs in the separate proceedings against the Minister, as the continuation of the judicial review proceedings was a necessary consequence of the failure of an administrative body of the State.

The court ordered that the respondents pay the applicants' costs of the proceedings to be taxed on a party/party basis up to and including 22 July 2003, and on a solicitor/client basis from 23 July 2003. The court also ordered that the respondents pay the applicants' costs of the proceedings in M208/2003 to be taxed on a party/party basis.

Orders