Howlin v Resource Management and Planning Appeal Tribunal (No 2)

[2009] TASSC 20

[2009] TASSC 20

CITATION:Howlin v Resource Management and Planning Appeal Tribunal (No 2) [2009] TASSC 20

PARTIES:  HOWLIN, Darryl Robert
  HOWLIN, Helen Lorraine
  v

RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL (NO 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  42/2008
DELIVERED ON:  25 March 2009
DELIVERED AT:  Hobart
HEARING DATE:  25 February 2009
JUDGMENT OF:  Blow J

CATCHWORDS:

Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Appeal Costs Fund – Definitions – "Appeal" – Application for judicial review of decision by tribunal – Meaning of "respondent" – Corporation notified of proceedings and represented at hearing.

Appeal Costs Fund Act 1968 (Tas), s8(1).
R v Watling; ex partePearson (1998) 7 Tas R 404; Ex parte Parsons; re Suitors' Fund Act (1952) 69 WN (NSW) 380; R v McGuire and Hanlon Homes Pty Ltd; ex parte Builders' Registration Boardof Queensland [1986] 1 Qd R 61, referred to.
Aust Dig Appeal and New Trial [393]

REPRESENTATION:

Counsel:
           Applicants:  In person
           Clarence City Council:                 S B McElwaine
Solicitors:
           Applicants:  In person
           Clarence City Council:                 S B McElwaine

Judgment Number:  [2009] TASSC 20
Number of paragraphs:  10

Serial No 20/2009
File No 42/2008

HOWLIN v RESOURCE MANAGEMENT AND
PLANNING APPEAL TRIBUNAL (NO 2)

REASONS FOR JUDGMENT  BLOW J

25 March 2009

1. In this matter, the Clarence City Council has applied for an indemnity certificate pursuant to the Appeal Costs Fund Act 1968, s8(1)(a)(ii). I reserved my decision in relation to that application because it raised a question as to whether the Court had the power to grant an indemnity certificate in the present situation. Because of the wording of s8(1), that depends on whether the council is a "respondent to the appeal" within the meaning of that subsection.

1. The council was unsuccessful in proceedings commenced by Mr and Mrs Howlin under the Judicial Review Act 2000. They sought the review of certain decisions made by the Resource Management and Planning Appeal Tribunal. They were successful. Only the tribunal was named in the originating application as a respondent to that application. No order was made for the council to be added as a respondent. However the council learned of the application. Its solicitor filed an appearance before the first return date of the application. It was represented at every stage of the proceedings. It alone opposed the application.

1. Strictly speaking, the application was not an appeal.  However the Appeal Costs Fund Act, s2, contains a definition of "appeal" which includes various types of proceedings, and ends with the words "and any other proceeding in the nature of an appeal". Proceedings for writs of certiorari, mandamus and habeas corpus have been held to be proceedings in the nature of an appeal within the meaning of the definition: R v Watling; ex partePearson (1998) 7 Tas R 404; R v Director of Corrective Services; ex parte Forrest (2001) 10 Tas R 141. I think it must follow that the application by Mr and Mrs Howlin, by which they sought to have the decisions and orders of the tribunal quashed as a result of errors of law, was a "proceeding in the nature of an appeal", with the result that their application constituted an appeal for the purposes of the Appeal Costs Fund Act.

1. However the question that now arises is whether the council was a respondent to that appeal within the meaning of s8(1). The relevant provisions in that subsection read as follows:

"(1)    Where an appeal –

(a)      to the Supreme Court from a decision of –

(i)       …

(ii)      a board or other body or person from whose decision there is an appeal to a superior court or who may state a case for the opinion or determination of a superior court on a question of law or reserve any question of law in the form of a special case for the opinion of a superior court; or

…

succeeds, the Supreme Court may, on application made in that behalf, grant to the respondent to the appeal or to one or more of several respondents to the appeal an indemnity certificate in respect of the appeal."

1. In proceedings for writs of certiorari, mandamus and habeas corpus, there is no such thing as a respondent.  The decision-maker is called a defendant.  The applicant is called a prosecutor.  Other persons whose interests might be affected by the proceedings are entitled to take part in the proceedings and be heard, but they are not respondents.  In R v Watling; ex parte Pearson (supra), Wright J granted an indemnity certificate to Gunns Ltd, which had taken part in the proceedings only as an entity whose interests were likely to be affected by the outcome of the proceedings. The prosecutor was an employee of that company who had been dismissed, had applied to the Tasmanian Industrial Commission for the hearing of a dispute relating to his dismissal, and was seeking prerogative relief in relation to the Commission's dismissal of his application. Wright J said, at 405:

"Gunns Ltd was served with the papers when the order nisi was granted and became a respondent to the proceedings as a consequence."

His Honour went on to grant an indemnity certificate to the company.  It appears from the Court file in relation to that proceeding that no order was made for Gunns Ltd to be joined as a respondent.  The Supreme Court Civil Procedure Act 1932, s3(1), defines "party" to include "every person served with notice of or attending any proceedings, although not named on the record or in the process". Gunns Ltd was thus a party, but not a respondent in any formal sense.

1. There are reported cases involving similar legislation in other States in which proceedings for prerogative relief have been regarded as proceedings in the nature of appeals, and litigants who have opposed the granting of such relief have been regarded as respondents: Ex parte Parsons; re Suitors' Fund Act (1952) 69 WN (NSW) 380; R v McGuire and Hanlon Homes Pty Ltd; ex parte Builders' Registration Boardof Queensland [1986] 1 Qd R 61 at 71.

1. The Acts Interpretation Act 1931, s8A(1), requires an interpretation of a provision that promotes the purpose or object of the Act to be preferred to one that does not. The Appeal Costs Fund Act is a piece of beneficial legislation.  One of its objects is to relieve litigants from the burden of costs orders made against them after appeals have succeeded in consequence of mistakes by courts and tribunals.  It would promote that purpose for the word "respondent" to be interpreted so as to include a litigant in the situation in which the council found itself in this case, rather than giving that word a strict or narrow interpretation.  Such an interpretation would be consistent with the approach taken in the cases I have referred to concerning prerogative writs.

1. For these reasons, I hold that the council is a respondent within the meaning of s8(1).

1. The application for judicial review was instituted, and succeeded, because of mistakes on the part of the tribunal.  There is no reason why I should not grant the certificate that the council has applied for.

1. I order that an indemnity certificate be granted to the Clarence City Council in respect of this proceeding.