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

1. 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.

1. 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 that the statutory scheme, absent interim prohibition, made recommendation mandatory.  Certainly counsel appearing for the respondents was not advised of either the intended or actual recommendation, since the hearing on the merits of the judicial review application continued on 17 June 2003.  Immediately before the publication of the reasons for decision on 22 July 2003, the respondents obtained leave to tender the Gazette of 2 April 2003 evidencing the declaration. The matter generally was adjourned for further hearing. Doubtless, cognisant of the possible impact of the making of the declaration, the applicants commenced separate proceedings in M208/2003 on 5 August 2003 against (following amendment) the Minister, seeking orders to have the declaration set aside. The hearing of M375/2002 resumed on 11 September 2003, resulting in declarations and orders favourable to the applicants being made on 14 October ([2003] TASSC 102).

1. The applicants seek differing orders for costs, namely:

(1)Party/party costs against the respondents up to and including the delivery of reasons for judgment on 22 July 2003.

(2)Costs thereafter on a solicitor/client basis.

(3)Costs in M208/2003 on a solicitor/client basis.

1. The respondents contend that:

(1)Since the applicants were not successful in relation to a central contention in M375/2002, they should recover only 80 per cent of their costs on a party/party basis.

(2)The Board had no discretion, absent court prohibition, but to make the recommendation and should not be ordered to pay indemnity costs.

(3)The proceedings comprised in M208/2003 were unnecessary and no costs should be ordered.

1. The Court accepts, with one exception, the applicant's contentions.  It is true that the respondents succeeded on a central issue, namely whether the applicants could advance wide grounds of objection to the granting of a declaration.  It is also true that the grounds for review as framed by the applicants were unnecessarily wide in some respects.  Yet much of the material comprised in the judge's papers was necessary for any consideration of the matters on which the applicants were successful.  The review was not confined to a discrete argument based on statutory interpretation.  The respondents themselves were unsuccessful in their argument concerning a secondary issue dependent on statutory interpretation.  The applicants succeeded in impugning the decision of the Tribunal and obtaining a rehearing.  Costs ought follow the event (see generally Burnie Port Corporation Pty Ltd v Bank of Western Australia Limited & Anor (2003) 11 Tas R 249).

1. The claim that a portion of those costs ought be taxed on an indemnity basis ought likewise be upheld.  Such costs ought be awarded in 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 (supra)).  Here, had the Court been advised of the making of the declaration before the hearing on 16 and 17 June, the issues could have been identified and argued in the one hearing.  The Court has been provided with no evidence as to the state of knowledge of the Chairperson of the Board, the person responsible for the making of the recommendation at the time of its making.  Accepting, for the purpose of argument, that the Board believed it had no discretion, failure to either alert or seek the advice of counsel resulted in a continuation of the hearing on the original basis and the opportunity for the respondents to argue at the second hearing that the exercise was futile and that the making of the declaration precluded Court intervention.  Notification to the Court before declaration would have easily permitted the making of an interim order precluding further administrative action.  The respondents correctly contended that it was open for the applicants to seek interim prohibition pending the determination.  The applicants, with hindsight, might have been wiser to have adopted that course.  But they were dealing with an instrumentality of the State and were entitled to assume that the saving of costs was desirable.  It may be that in future an additional order with the attendant costs of time and money will be sought as a matter of course.

1. The proceedings in M208/2003 were ultimately unnecessary.  But at the resumed hearing on 11 September, the respondent strongly contended that the continuation of the judicial review proceedings was futile, since the Court had no power to revoke the declaration made by the Governor-in-Council.  The applicants, unaware of the making of the declaration until after the conclusion of their submissions, were entitled to take protective steps to preserve their ultimate cause.  That action was a necessary consequence of a failure by an administrative body of the State.  They ought have their costs in the ordinary way.

Orders:

M375/2002

(1)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.

(2)That the respondents pay the applicants' costs of the proceedings to be taxed on a solicitor/client basis from 23 July 2003.

M208/2003

(3)That the respondents pay the applicants' costs of the proceedings to be taxed on a party/party basis.