KALLIDIS and CITY OF MELVILLE
[2006] WASAT 373 (S)
•14 FEBRUARY 2007
| JURISDICTION | : STATE ADMINISTRATIVE TRIBUNAL | ||
| STREAM |
| ||
| ACT |
| ||
| CITATION |
| ||
| MEMBER |
| ||
| HEARD |
| ||
| DELIVERED | : 20 DECEMBER 2006 | ||
| SUPPLEMENTARY | |||
| DECISION | : 14 FEBRUARY 2007 | ||
FILE NO/S |
| ||
| BETWEEN | : GEORGE KALLIDIS |
Applicant
AND
CITY OF MELVILLE
Respondent
Catchwords:
Practice and procedure - Costs - Town planning - Unjustified proceedings - Conduct of applicant - Whether regulatory authority has an expectation of recovery of costs - Application dismissed
[2006] WASAT 373 (S)
Legislation:
Local Government Act 1995 (WA), s 9.7
Planning and Development Act 2005, s 214, s 252, s 255
State Administrative Tribunal Act 2004, s 47, s 47(1), s 47(1)(a), s 47(1)(b),
s 47(1)(c), s 87, s 87(1), s 87(2), s 87(4)
Town Planning and Development Act 1928 (WA), s 10, s 10AA
Result:
Application for payment of costs dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Self-represented |
| Respondent | : | Mr G Owen |
Solicitors:
| Applicant | : | Self-represented |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Aydogan and Town of Cambridge & Anor [2007] WASAT 19
Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246;
[2005] WASAT 53
Kallidis and City of Melville [2006] WASAT 373
Lakes Action Group Association (Incorporated) and Shire of Northam &
Anor [2005] WASAT 185(S)
Morea Architects and Town of Vincent [2006] WASAT 263
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of
Fisheries (WA) [2005] WASAT 206
[2006] WASAT 373 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The City of Melville, which was successful in planning review
proceedings, sought orders that Mr Kallidis pay costs incurred by the City
in the conduct of the proceedings.2 The City of Melville contended that the proceedings fell substantially
within the three categories of "unjustified proceedings" as set out in s 47(1)(a), s 47(1)(b) and s 47(1)(c) of the State Administrative Tribunal Act 2004 (WA).
3 The Tribunal did not consider that the matters fell within the ambit of
s 47 of the State Administrative Tribunal Act 2004. The Tribunal determined that Mr Kallidis did not act unreasonably in the circumstances and found there was no reason to depart from the Tribunal's usual practice in review proceedings under which, normally, each party is to pay its own costs.
The City of Melville's application that Mr Kallidis pay their costs
was dismissed.
Introduction
5 The City of Melville (respondent) makes application for an order that
Mr Kallidis (applicant) pay its costs in the proceedings relating to two applications being:
(i) DR 661 of 2005 – an application to set aside a direction issued by the respondent to the applicant; and
(ii) DR 214 of 2006 – an application for review of the decision of the respondent to refuse planning approval for an overheight boundary fence of masonry construction along portion of the southern boundary of Lot 2 (No 113B) Point Walter Road, Bicton.
6 The Tribunal affirmed but modified the direction the subject of
DR 661 of 2005 and dismissed the application for review relating to
DR 214 of 2006 (see Kallidis and City of Melville [2006] WASAT 373).
Tribunal's practice in relation to costs in review proceedings
7 Division 5 of the State Administrative Act 2004 (WA) (SAT Act) sets out provisions relating to "costs of parties and others" (s 87) and "costs of
[2006] WASAT 373 (S)
proceeding" (s 88). The Tribunal has delivered a number of decisions that established the principles to be applied in relation to an application for costs in the Tribunal.
8 The Tribunal has recognised that, from the terms of s 87(1) of the
SAT Act, the starting proposition is that parties bear their own costs in a proceeding: Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53 at [28]. However, s 87(2) clearly confers a discretion on the Tribunal to make an order for the payment by a party of all or any costs of another party unless otherwise specified in an enabling Act.
9 The Tribunal determined in both Citygate Properties Pty Ltd and City of Bunbury and Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 that normally, in administrative review proceedings, each party should bear its own costs of the proceedings. In Shark Bay Tuna Farms Pty Ltd and Department of Fisheries, the President stated, at [36], that:
"… the State Administrative Tribunal has been established by the Parliament of the State with its review jurisdiction as part of the system of public administration of the State to ensure that citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. The starting out position is that, absent other relevant factors, an applicant should be able to obtain review without being obliged to meet the decision-maker's costs if they do not succeed; and similarly, the decision-maker is not ordinarily entitled to recover costs from the applicant in the event the review application is unsuccessful."
10 Similarly, in Citygate Properties Pty Ltd and City of Bunbury, Senior Member Mr DR Parry observed, at [31], that there are several sound policy reasons which support an approach to the exercise of discretion under s 87(2) of the SAT Act in relation to review proceedings under which usually each party should bear its own costs:
"First, it ensures that individuals who have had an application rejected or not considered by an original decision-maker or who have been given a direction or notice to do or cease doing something, have an opportunity for the decision to be reviewed without the fear of being ordered to pay costs if they do not succeed. Second, the review tribunal essentially 'sits in the
[2006] WASAT 373 (S)
shoes' of the original decision-maker before whom the applicant was only responsible for its own costs. Third, although the review tribunal will usually ultimately prefer one party's position over another's, reasonable minds might well differ about an appropriate result as to merit."
11 Although Citygate Properties Pty Ltd and City of Bunbury concerned an application for costs in relation to review proceedings purportedly commenced pursuant to s 9.7 of the Local Government Act 1995 (WA), the Tribunal in Morea Architects and Town of Vincent [2006] WASAT 263 found that the policy reasons identified in Citygate Properties Pty Ltd and City of Bunbury, at [31], were equally apposite in the case of an application for review of a direction given under s 10 of the Town Planning and Development Act 1928 (WA) (TPD Act) or s 214 of the Planning and Development Act 2005 (WA) (PD Act). The Tribunal held that the discretion in relation to costs in review proceedings concerning a direction under s 10 of the TPD Act or s 214 of the PD Act should, therefore, be exercised such that usually each party will pay its own costs of the proceedings.
12 Section 87(4) sets out certain matters to which the Tribunal is to have
regard in exercising its discretion to award costs in the Tribunal's review
jurisdiction –"(a) whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;
(b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits."
13 The Tribunal in Lakes Action Group Association (Incorporated) and Shire of Northam & Anor [2005] WASAT 185(S) found that this subsection does not limit the matters which might be considered under s 87(2) (See also Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246 at [32] and Morea Architects and Town of Vincent [2006] WASAT 263 at [93]).
14 The Tribunal further articulated in Aydogan and Town of Cambridge & Anor [2007] WASAT 19 that the Tribunal in its review jurisdiction, is a generally costs-free forum and that the making of a costs application in relation to review proceedings which concerned a genuine
[2006] WASAT 373 (S)
dispute as to planning merit normally involved unreasonable conduct warranting an order that the applicant for costs compensate the other party or parties for having had to defend the application.
Application for costs against the applicant
15 The respondent contends that both proceedings fall substantially
within the three categories of "unjustified proceedings" set out in s 47(1)(a),(b) and (c) of the SAT Act, which although not directly related to the exercise of power in s 87(4) of the SAT Act, are relevant considerations in the exercise of discretion.
The three categories set out in s 47(1), as referred to by the respondent, are proceedings that are:
• frivolous, vexatious, misconceived or lacking in substance (s 47(1)(a)); • being used for an improper purpose (s 47(1)(b)); or • otherwise an abuse of process (s 47(1)(c)).
17 In the matter DR 661 of 2005, the respondent submits that the
applicant sought to deal with the application for review of the decision to issue the direction as a review of conditions, even though the Tribunal clearly indicated that this was not to be the case. The respondent maintains that only one of the issues raised by the applicant was remotely relevant to the matter and that the submissions and arguments were manifestly without substance. Further, the respondent considers the application was inconsistent with the act of the applicant in entering a plea of "guilty" at the first return of the complaint against him in the Magistrates Court at Fremantle on 4 November 2005.
18 The respondent also argues that it is a regulatory authority
performing a function in the interest of a sector of the public, and that it is not unreasonable to expect recovery of part or all of its costs in the event that it is successful.
In relation to matter DR 214 of 2006 the respondent repeats the arguments and submissions made in relation to matter DR 661 of 2005. The respondent further submits that the planning application, the subject of DR 214 of 2006, was an abuse of process by seeking to have revisited on a fourth occasion determinations made by the respondent, particularly as there were no appeals against any of the previous approvals granted by the respondent. The respondent contends that an award of costs in favour
[2006] WASAT 373 (S)
of the Local Government is an appropriate response to encourage responsible behaviour where proceedings are manifestly not commenced on merit based grounds.
20 At no time during the proceedings did the Tribunal consider the
matters to fall within s 47 of the SAT Act. If this had been the case, the Tribunal would have made appropriate orders at the time and would not have allowed the matter to proceed to final hearing. It is the Tribunal's view that Mr Kallidis merely sought to exercise the rights conferred under s 10AA of the TPD Act (now s 255 of the PD Act) and s 252 of the PD Act. Mr Kallidis, although frustrated and distressed, attempted to find alternative resolutions to the outstanding issues. After a comprehensive mediation process, which resulted in some of the issues being resolved, the matters proceeded to hearing and were determined on the arguments put forward by the parties and the merits of the particular application.
21 The respondent's argument that it is not unreasonable to expect
recovery of part of all of its costs in the event that it is successful in a review as it is a regulatory authority performing a function in the interest of a sector of the public is contrary to the principles articulated in Citygate Properties Pty Ltd and City of Bunbury at [31].
22 The Tribunal does not consider the action of Mr Kallidis in bringing
the applications for review before the Tribunal to be unreasonable.
Consequently each party should bear its own costs.
The respondent's application that the applicant pays its costs is therefore dismissed.
| Orders |
The application that the applicant pay the respondent's cost is
dismissed.
I certify that this and the preceding [24] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
0
0
5