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

The appellant, Kidd, sought review of a decision made by the Resource Management and Planning Appeal Tribunal (the Tribunal) in relation to a planning permit application. The Supreme Court of Tasmania heard the appeal. The central issue before the court was whether the Tribunal had made an error of law that warranted a remitter for reconsideration, and if so, whether it should be remitted to a differently constituted Tribunal. Additionally, the court had to determine if the question of the Tribunal's constitution should be left to its administrative arrangements.

The court examined the nature of the errors of law identified in the Tribunal's decision and considered whether these were sufficient to warrant a remitter. The court referenced previous cases such as R v Resource Planning & Development Commission; ex parte Dorney, Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority, and Comcare v Broadhurst, which dealt with similar issues of remitter for reconsideration. The court also considered the case of Seablest Pty Ltd v Smith to understand the appropriate circumstances for such a remitter. The court concluded that the errors of law were significant enough to warrant a remitter, but it was not necessary to remit the matter to a differently constituted Tribunal, as the question of the Tribunal's constitution could be addressed through its administrative arrangements.

The court further examined the issue of indemnity certificates under the Appeal Costs Fund Act 1968 (Tas), specifically whether such certificates should be granted "in favour of the Crown." The court applied the principles from R v Director of Corrective Services; ex parte Forrest and Superannuation Fund Investment Trust v Commissioner of Stamps to conclude that the Tribunal did not constitute the Crown for the purposes of granting an indemnity certificate. Lastly, regarding costs, the court held that it was undesirable to award costs on separate issues unless they were clearly dominant or separable, applying the principles from Burnie Port Corporation Pty Ltd v Bank of Western Australia Ltd.

The court ordered that the matter be remitted to the Tribunal for reconsideration without a change in its constitution. The court also ruled that no indemnity certificate should be granted in favour of the Crown and exercised its discretion on costs, awarding them in accordance with the general rule that costs follow the event.