KESSELL and SHIRE OF MOORA

[2025] WASAT 114

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: HEALTH (MISCELLANEOUS PROVISIONS) ACT 1911 (WA)

CITATION:   KESSELL and SHIRE OF MOORA [2025] WASAT 114

MEMBER:   MS R LAVERY, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   20 OCTOBER 2025

FILE NO/S:   DR 82 of 2024

BETWEEN:   DAVID MATTHEW KESSELL

Applicant

AND

SHIRE OF MOORA

Respondent

Catchwords:

Costs - Town Planning - Application for costs of unsuccessful application for review - Whether costs should be paid by the unsuccessful party

Legislation:

Health (Miscellaneous Provisions) Act 1911 (WA), s 137(ii)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 87(2)
State Administrative Tribunal Rules 2004 (WA), r 42A

Result:

Respondent's costs application dismissed

Category:    B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

Danni and Town of Cambridge [2023] WASAT 123

J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. These reasons relate to the application for costs made by the respondent for the applicant's unsuccessful application for review of the decision of the respondent on 6 May 2024 to issue two notices in relation to a dilapidated house on Lot 273 (No. 6) Keever Street, Moora.[1]

   [1] DR 82/2024 David Kessell and Shire of Moora decision of Tribunal dated 9 June 2025.

2. The applicant was self-represented in the matter, the respondent had legal representation.

3. The respondent applied to the Tribunal pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) and r 42A of the State Administrative Tribunal Rules 2004 (WA) for an order that the applicant pay a portion of the respondent's costs totalling $8,265.51 including GST. incurred in these proceedings.[2]

   [2] Respondent's submissions as to costs dated 18 July 2025.

4. The respondent's grounds of the application for costs are that:[3]

   •the Applicant's case was wholly without merit;

   •the Applicant conducted the proceedings unreasonably, in that he pursued the application to a contested final hearing but did not adduce relevant or helpful evidence at the hearing; and

   •cost orders are, in all the circumstance, fair and reasonable.

   [3] Respondent's Application for costs correspondence dated 30 June 2025.

5. The applicant opposes the orders sought by the respondent.[4]  Mr Kessell argues that it was not his choice but the choice of the respondent to take the matter to final hearing rather than varying the notice to allow him time to undertake the works necessary.  He also argues that it was the choice of the respondent to seek legal representation, and he says that the financial liability therefore rests with the respondent.[5]

   [4] Applicant's response to submissions as to costs dated 1 August 2025.

   [5] Applicant's response to submissions as to costs dated 1 August 2025 provided the applicant's detailed response to the respondent's cost application.

The discretion in relation to costs

1. The application for review was brought under s 137(ii) of the Health (Miscellaneous Provisions) Act 1911 (WA) (HMP Act).

2. The approach to costs in the Tribunal is well established and recently explained in Danni and Town of Cambridge [2023] WASAT 123 at [18] - [19].

3. While the starting point is that each party will bear their own costs in a review proceeding,[6] if I am satisfied that it is appropriate to make an order for costs, I retain a residual discretion to do so.[7]  The making of a costs order in the Tribunal generally flows from a finding that the conduct of a party is unreasonable. 

   [6] SAT Act, s 87(1); see also Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 [51] (Murphy JA, Martin CJ, Corboy J agreeing) (Questdale).

   [7] SAT Act, s 87(2).

4. Murphy JA (Martin CJ, Corboy J agreeing) in Questdale, explained that:[8]

   Although s 87(2) does not in terms say that the discretion [to make a costs order] is to be exercised if it is fair and reasonable in all the circumstances of the case to do so, the judicial nature of the exercise and the scheme of the SAT Act indicates that, broadly speaking, that is the legislative intention.

   [8] Questdale [49].

5. In J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282(S) (J & P Metals Pty Ltd), the Tribunal stated at [38] that:

   … In the unusual event that an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable.  That approach reflects an expectation that representatives of parties before the Tribunal will approach a proceeding in a way that minimises costs to their clients.  If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order.

Tribunal's considerations

1. In coming to my decision on costs, I have taken into consideration the submissions of the respondent dated 30 June 2025, 18 July 2025 and the schedule of costs dated 18 July 2025, and the submissions by the applicant dated 1 August 2025.

2. The respondent was aware that the applicant was to be self­represented in the hearing process and chose to be legally represented as is its right.  The costs associated with that legal representation are therefore not readily costs that are to be borne by the applicant in this matter unless I find that the applicant has conducted himself unreasonably.

3. I find it is neither unusual nor unreasonable for a party to be self­represented in a review proceeding.  My intention in pointing out the ways in which the applicant may have further assisted the Tribunal in the reasons for the decision on the review application, was to provide an explanation for the applicant to assist him in understanding how I had come to my decision.

4. I do not accept that the applicant was unreasonable in prosecuting his case given his position of wanting to retain his house on the lot, contrary to the notices issued. The applicant's right of review is enshrined in legislation pursuant to s 137(ii) of the HMP Act. I find that the materials and submissions made by the applicant were relevant and genuinely attempted to enable and assist the Tribunal in understanding his case, even though he did not call expert evidence.

5. I do not find that the case was wholly without merit as asserted by the respondent or that the applicant conducted himself unreasonably in the hearing.

6. The overall length of time this issue has been ongoing has also been raised by the respondent as a concern, and I agree it is considerable.  However, I do not believe this decision on costs turns on the duration of the issue.  Nor do I need to make a finding that attributes fault to one party or the other in that regard without detailed knowledge of both parties' reasons for not resolving the matter more expeditiously. 

Conclusion

1. For all the reasons above, I find the applicant's conduct in the prosecution of his case is not unreasonable and that this case is not an unusual or exceptional occurrence that warrants consideration of costs being awarded against the applicant.  The Tribunal concludes that the correct and preferable decision in this case is that the respondent's application for costs be dismissed and makes the following orders.

Orders

The Tribunal orders:

1.The respondent's application for costs dated 30 June 2025 against the applicant is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS R Lavery, MEMBER

20 OCTOBER 2025