Lakes Action Group Association (Incorporated) and Shire Of Northam and Anor
[2005] WASAT 185 (S)
•28 JULY 2005
| JURISDICTION | : STATE ADMINISTRATIVE TRIBUNAL | ||
| STREAM |
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| ACT |
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| CITATION |
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| MEMBER |
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| HEARD | : 10 MAY 2005 | ||
| DELIVERED | : 28 JULY 2005 | ||
| SUPPLEMENTARY | |||
| DECISION | : 8 NOVEMBER 2005 | ||
| FILE NO/S |
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| BETWEEN |
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AND
SHIRE OF NORTHAM
First Respondent
BGC (AUSTRALIA) PTY LTD
Second Respondent
[2005] WASAT 185 (S)
Catchwords:
Costs - Whether Tribunal functus officio after delivery of reasons - Basis of jurisdiction - Whether repealed section 65 of the Town Planning and Development Act 1928 applicable by reason of transitional provision of the State Administrative Tribunal Act 2004 - Principles to be applied - Unreasonable behaviour of party - Relevance of nature of parties - Nature of proceedings under section 18 of Town Planning and Development Act 1928
Legislation:
Commonwealth Employees' Rehabilitation and Compensation Act 1988
(Cth), s 65(2)
s 87(8)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
State Administrative Tribunal Act 2004 (WA), s 32(1), s 87, s 87(1), s 87(2),
s 87(4), s 87(6), s 88, s 167(4)(b), s 167(13)
State Administrative Tribunal Regulations 2004 (WA), reg 40
Result:
Applicant ordered to pay costs thrown away in relation to unnecessary hearing
Category: B
Representation:
Counsel:
| Applicant | : | Mr D Garnsworthy and Ms L C E Simpkin |
| First Respondent | : | Mr D Nadebaum |
| Second Respondent | : | Mr M C Hotchkin |
Solicitors:
| Applicant | : | Environmental Defender's Office WA |
| First Respondent | : | McLeods |
| Second Respondent | : | Hotchkin Hanley |
[2005] WASAT 185 (S)
Case(s) referred to in decision(s):
Carboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd
(1993) 117 ALR 253
Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246
Department of Health v Nikolovski (No.2), unreported decision; AAT No
10826A; 13 November 1996
Donald Crone & Associates v Bathurst City Council & Ors [1998] NSWLEC 95 Lakes Action Group Association (Incorporated) and Shire of Northam & Anor
[2005] WASAT 185
Lakes Action Group Association (Incorporated) and Shire of Northam & Anor
[2005] WASAT 8
Lakes Action Group Association (Incorporated) and Shire of Northam & BGC
Australia Pty Ltd [2004] WATPAT 195
Lewandowski & Ors v Lovell, unreported decision of the Full Court of the
Supreme Court of Western Australia; Library No 960310; 14 June 1996
Re Sanchez and Comcare (1997) 48 ALD 785
Telescourt v Commonwealth (1991) 29 FCR 227
Case(s) also cited:
Attorney General v Wentworth (1988) 14 NSWLR 481
Bayside CC v Campbell & Ors [1999] VCAT 1638
Begley v Pine Rivers Shire Council & Ors (1994) QPLR 228
Brandt v Town Planning Board (Unreported No.23 of 1984)
Cardinia SC v de Haan [2004] VCAT 942
Citygate Properties Pty Ltd v City of Bunbury [2005] WASAT 53
Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248
Commonwealth Bank of Australia & Ors v Ridout & Ors [2004] WASC 136
Cotsonis v Darebin CC [2005] VCAT 1131
Cyril Harding and Hartley Read v Shire of Chittering [2004] WATPAT 146
DJL v The Central Authority [2000] HCA 17
Evertt v City of Armadale 29 SR (WA) 106
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty
Ltd and Others (1988) 81 ALR 397
Friends of Hay Street v Hastings (1995) 87 LGERA 44
Gary Ellis Tremaine v Westen Australian Planning Commission
[2003] WATPAT 144
Greenwedge Protection Group Inc v Nillumbik SC [2005] VCAT 1116
Hobsons Bay City Council v Haouli & another [2001] VCAT 23
J. & C. Cabot & Anor v City of Keilor & Anor 1994 1 VR 220
[2005] WASAT 185 (S)
Map Plumbing Services Pty Ltd v BB Enterprises Pty Ltd (2000) 35 ACSR 135
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
| New | South | Wales | Insurance | Ministerial | Corporation | v | Edkins |
(1998) 45 NSWLR 8
Oshlack v Richmond River Council [1998] HCA 11
Randall v Town of Vincent [2005] WASAT 147
Ron Hatch Real Estate v Town of Cottesloe 1993 10 SRWA 12
Seafirst Nominees Pty Ltd v Mansfield SC [2005] VCAT 1236
Smith v Maloney (1998) 19 WAR 209
Snowtop Mushrooms Pty Ltd v AG Powley and K Powley (unreported decision
of the Full Court of the Supreme Court of Western Australia, Library
No 4501; 14 May 1982
South-West Forests Defence Foundation v Lands and Forest Commission
(No. 2) (1995) 86 LGERA 382
West Australian Construction Industry v Ortin [2002] WASC 185
[2005] WASAT 185 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
These proceedings arose from a reference by the Minister under s 18 of the Town Planning and Development Act 1928 (WA).
2 Following the publication of the Tribunal's report to the Minister, the
first and second respondents sought an order that the applicant pay certain costs in relation to the proceedings. The second respondent also sought an order that the applicant's representative, the Environmental Defender's Office, pay a portion of the second respondent's costs.
3 The basis for the application was the respondents' contention that the
applicant had acted unreasonably or vexatiously in pursuing an argument that had previously been ruled to be outside the proper scope of the proceedings. In response, the applicant argued that, the Tribunal having completed its report to the Minister, no longer had jurisdiction to deal with an application for costs. In the alternative the applicant argued that it was fulfilling a role that promoted the public interest, its conduct was not unreasonable and that no order for costs should be made against it.
4 The Tribunal decided that it retained jurisdiction to deal with the
costs application notwithstanding that it had delivered its report to the Minister. It found that, in relation to a hearing on 27 January 2005, the applicant had acted unreasonably by pursing an argument that the Town Planning Appeal Tribunal had earlier found to be outside the scope of the proceedings. That unreasonable approach caused that hearing date to be wasted and caused the other parties to incur unnecessary expense. Accordingly the Tribunal ordered that the applicant pay the costs unnecessarily incurred by the respondents. It concluded that otherwise the applicant's conduct was not unreasonable, and that there should be no order for the payment of any other costs by the applicant.
The Tribunal found that there was no basis on the evidence before it to make an order for payment of costs by the applicant's representative.
The background to the applications for costs
6 On 28 July 2005, the Tribunal published to the parties, and
forwarded to the Minister for Planning and Infrastructure, a report and recommendation pursuant to s 18(2a) of the Town Planning and Development Act 1928 (WA) (Act) - Lakes Action Group Association (Incorporated) and Shire of Northam & Anor [2005] WASAT 185. The making of that report followed a hearing on 10 May 2005. At the
[2005] WASAT 185 (S)
conclusion of his submissions on the merits of the matter at that hearing, Mr Hotchkin, counsel for the second respondent, asked "Can I be heard on the question of costs either today or on another occasion?" The presiding member of the Tribunal responded "I think it's a matter for another occasion and we'll deal with it then". Counsel for the first respondent then briefly addressed the Tribunal and otherwise relied upon her written submissions. No mention of costs was made by the first respondent's counsel during the hearing.
7 In delivering its reasons for decision, which constituted the report for
the purposes of s 18(2a) of the Act, the Tribunal followed its common, although not by any means invariable, practice of mailing the reasons to the parties. It did so under cover of a letter dated 28 July 2005 which advised, as was the fact, that the report and recommendation had been sent to the Minister. On 1 August 2005, the solicitors for the second respondent, having received the letter of 28 July 2005, wrote to the Tribunal requesting that the matter be relisted for argument on the question of costs and enclosing a written outline of submissions in support of an application for costs. The basis upon which costs were sought was s 65 of the Act which, prior to its repeal on 1 January 2005, empowered the former Town Planning Appeal Tribunal to order that a party who had behaved "unreasonably, vexatiously or frivolously in relation to the appeal" pay the costs of another party. In the alternative, the first respondent sought an order that the applicant pay costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
8 Having received a copy of Hotchkin Hanley's letter of
1 August 2005, the solicitors for the applicant wrote to the Tribunal advising that the application for costs would be opposed and that counsel was being engaged.
9 In response to that correspondence the Tribunal relisted the matter
for directions, and at a directions hearing on 19 August 2005 made certain procedural orders and adjourned the application to 27 October 2005 for argument on the question of costs. The orders made included a direction to the first respondent to file and serve any submissions on the questions of costs, the first respondent having indicated at the directions hearing that it also proposed seeking an order for costs. In compliance with that direction, the Shire of Northam lodged submissions claiming costs pursuant to s 87(2) of the SAT Act. That claim was made on the basis of an assertion that the applicant's approach to the proceedings caused the respondents to incur unnecessary costs, in particular because the applicant failed to accept two interlocutory decisions of the Tribunal as to the scope
[2005] WASAT 185 (S)
of the proceedings. The shire also submitted that this was an appropriate case where the applicant's representative should be required to pay the first respondent's costs pursuant to s 87(6) of the SAT Act.
10 The submissions by the parties gave rise to three broad issues. The
first is whether it is open to the Tribunal to make any order for costs or whether the Tribunal is "functus officio". The second is, if the Tribunal is not "functus officio", under what statutory power is an award of costs open, and what criteria are to be applied in the exercise of the discretion to award costs. The third issue is, if the power to award costs is available, how the discretion should be exercised on the facts of this case.
Functus officio
11 The applicant contends that, because the report, being the Tribunal's
reasons for decision, had been sent to the Minister, the report constitutes a
"final decision" which is not capable of review or variation.12 In support of that proposition, the applicant relied on a decision in
the Administrative Appeals Tribunal, Re Sanchez and Comcare (1997) 48 ALD 785. That case involved a decision under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Administrative Appeals Tribunal had handed down a decision which set aside a decision made by the respondent and ordered that the costs of the proceedings incurred by the applicant be paid by the respondent. Some months after the delivery of the decision, the applicant's solicitors sought to relist the matter before the Tribunal for argument in relation to costs. The Tribunal concluded that it did not have power to reconsider its decision on costs.
13 The applicant also referred to Lewandowski & Ors v Lovell, unreported decision of the Full Court of the Supreme Court of Western Australia; Library No 960310; 14 June 1996. In that case the court declined to allow an application to vary a costs order already made.
14 There is a clear distinction between the facts of this case and the
facts in each of Re Sanchez and Comcare and Lewandowski & Ors v Lovell. Those cases involved attempts to vary costs orders already made. In this matter, the reasons for decision made no mention of costs. Indeed, given the peculiar nature of proceedings brought about by the procedures in s 18 of the Act, the delivery of the reasons for decision did not involve the making of any orders at all. But even if the reasons are viewed as the Tribunal's decision on the substantive issues in the proceedings before it, they did not address the question of costs in any respect.
[2005] WASAT 185 (S)
15 The position where the question of costs are not addressed in reasons
for decision delivered by a Tribunal were specifically referred to in Re Sanchez and Comcare. The Senior Member referred to Department of Health v Nikolovski (No.2), unreported decision; AAT No 10826A; 13 November 1996, where it was said:
"We also consider that in any matters arising under this Act (being the Safety, Rehabilitation and Compensation Act 1988 (Cth)) it should be assumed that the question of costs is reserved. In order to save costs of the Tribunal and the parties, the Tribunal adopts the practice of delivering its written decisions in the absence of parties. Thus, the parties have no opportunity at the point of delivery to make submissions as to costs. Unless the Tribunal deals with the costs question in its reasons, it should be assumed that the issue is reserved and may be raised by either party."
16 As the Senior Member observed, those comments give effect to what
was said by von Doussa J in Telescourt v Commonwealth (1991)
29 FCR 227 at 237, where His Honour said:"On the question of costs I do not consider the Tribunal was functus officio once it had handed down its decision. Section 67(a) stands as a discrete head of power. It empowers the Tribunal to award costs where it makes a decision coming within the terms of the sub-section. Until the power is exercised the functions of the Tribunal are not complete."
17 The Telescourt decision was concerned with the power to award
costs pursuant to s 87(8) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). Section 87(2) of the SAT Act and the former s 65 of the Act differ in their terms but both are discrete heads of power. There had been no exercise of that power when the decision was delivered.
18 In Lewandowski & Ors v Lovell Murray J referred the Carboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (1993) 117 ALR 253 where an order having been made for the payment of the defendant's costs by the plaintiff, the defendant subsequently applied for a costs order against the plaintiff's solicitors on the basis of an allegation that the action against the solicitors was one that survived final judgment and an award of costs against the unsuccessful litigant. Murray J observed that "the order against the solicitors might be regarded as of a
[2005] WASAT 185 (S)
supplemental kind", not in any way varying or altering the original order in respect of the payment of costs. In our view, an order for costs under s 87(2) of the SAT Act (or s 65 of the Act) where the question of costs has not been earlier dealt with in a final decision can similarly be regarded as an order of a supplemental kind. The observations made by the AAT in Department of Health v Nikolovski (No. 2) set out above are applicable to this Tribunal.
19 If, as in this case, the reasons for decision delivered in proceedings
before the State Administrative Tribunal do not address the question of costs, it remains open for a party to make an application for an order of costs, and for the Tribunal to exercise its jurisdiction in relation to costs. That approach reflects the approach to the same question taken by Cripps J in the New South Wales Land and Environment Court in Donald Crone & Associates v Bathurst City Council & Ors [1998] NSWLEC 95. To hold otherwise would give rise to the result that the Tribunal could, by delivering its reasons without first providing an opportunity to the parties to be heard on the question of costs, effectively deprive the parties of that right. That consequence is highlighted in this case, where, in response to counsel's request to be heard on costs, the Tribunal indicated that the matter would be dealt with at a later stage. If the applicant's submission on this issue were accepted, the Tribunal would have deprived the respondents of an opportunity to be heard on the question of costs and thereby contravened s 32(1) of the SAT Act which requires the Tribunal to afford natural justice.
The statutory basis for a costs order
20 The second respondent contends that it is open to the Tribunal to
award costs pursuant to the now repealed s 65 of the Act. The essence of that submission is that the application of s 65 is preserved in cases where an application has been partly heard before, but not determined by, a former adjudicator, and was then transferred to the Tribunal by the operation of s 167(4)(b) of the SAT Act. The preservation of the application of the section is said to result from the provisions of s 167(13) of the SAT Act. That section provides:
"(13) Where a matter is transferred to the Tribunal under
subsection (4)(b) or (5) –
(a)
the practice and procedure, and any hearing or other fees, applicable to the matter when it was being dealt with by the former adjudicator
[2005] WASAT 185 (S)
continue to apply to the matter when it is being
dealt with by the Tribunal; and
(b)
the Tribunal has the powers that the former adjudicator had in dealing with the matter,
if and to the extent that the regulations or rules so
provide."
21 The second respondent's submissions misconstrue that subsection.
Its submission is that the powers of the former adjudicator remain "unless the regulations or rules otherwise provide". That is not what the subsection says. Neither the regulations nor the rules, promulgated under the SAT Act, provide for any continuation of the operation of the repealed s 65 in relation to applications coming within s 167(4)(b). Regulation 40 of the State Administrative Tribunal Regulations 2004 (WA) makes some transitional provisions in relation to the Act, but does not touch on the question of the general powers of the former Tribunal.
22 When the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) repealed s 65 of the Act with effect from 1 January 2005, the question of costs of parties to proceedings which were transferred to the Tribunal became governed by s 87 of the SAT Act.
23 The second respondent contended that the merits of its application
were unaffected by whether the jurisdiction to award costs arose under the repealed s 65 of the Act, or s 87(2) of the SAT Act. The applicant disagreed. It argued that it was not open, in considering applications for costs pursuant to s 87 of the SAT Act, to have regard to considerations of frivolousness or vexatiousness in the conduct of the proceedings, those being the matters which gave rise to a power to award costs under the repealed s 65. As we understand that submission, it was based on the proposition that because s 88 of the SAT Act specifically identifies a ground of frivolousness or vexatiousness as one of the alternative criteria to justify an order under that section in the review jurisdiction of the Tribunal, those considerations are not relevant to an application under s 87 which makes no reference to those criteria. We do not accept the applicant's submission. Section 87(4) identifies certain matters to which the Tribunal is to have regard in exercising its discretion to award costs in the Tribunal's review jurisdiction. That subsection does not limit the matters which might be considered under s 87(2): Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246 at 253. There is no
[2005] WASAT 185 (S)
reason to exclude vexatious or frivolous conduct from the matters which might be taken into account under s 87(2). They are factors which, where they exist, are likely to be significant in the Tribunal's exercise of discretion to depart from the general costs provision in s 87(1). The reasons they are specified as criteria that must be satisfied before an order can be made in the Tribunal's review jurisdiction under s 88, is to limit the discretion under that section.
24 In any event, the substance of the complaint by both respondents is
that the applicant behaved in a manner which was unreasonable, which had the effect of causing the respondents to incur additional costs, and unnecessarily prolonged the proceedings. Unreasonable behaviour causing expense to other parties to a proceeding is clearly a relevant factor to be taken into account in the exercise of the discretion available under s 87(2). The question for the Tribunal is whether, in this case, the applicant has behaved unreasonably and caused unnecessary expense to the respondents or either of them.
The nature of the proceedings
25 The applicant submits that, in considering whether an order for costs
should be made, it is relevant to have regard to the public interest in community groups being able to pursue adherence to legislative schemes such as town planning schemes without the fetter of potential liability for costs. It submits that s 18 of the Act exists for that purpose. Further it contends that the proceedings should, or at least can, be treated as inquisitorial rather than adversarial so that the parties should be treated as being there to assist the Tribunal and not as adversarial parties in the normal sense.
26 As a general proposition, the Tribunal accepts that a community
group or public interest body that is involved in proceedings as a representative of a community or public interest, should generally be able to participate without the spectre of a costs liability if its arguments ultimately prove unsuccessful. In the ordinary course, the necessary reassurance is found in s 87(1) of the SAT Act. There is no reason in principle, however, that such a body should be protected from the consequence of its own unreasonable behaviour where that behaviour causes needless expense to other parties involved in proceedings.
27 The nature of proceedings referred under s 18 is prescribed by
s 18(2b). It provides that Part V of the Act applies as if the referral were an application for review. The consequence of that provision is that the party making the representation and parties directly affected by the
[2005] WASAT 185 (S)
representation will be placed in the same position as parties to a review application under the Act. That position is that "the starting proposition in this Tribunal is that parties bear their own costs in a proceeding", although s 87(2) of the SAT Act "clearly confers a discretion as the Tribunal to make an order for the payment by a party of all or any of the costs of another party unless otherwise specified in an enabling Act": Citygate Properties Pty Ltd and City of Bunbury at 252.
The history of the matter
The relevant history of this matter, including a series of correspondence exchanged between the parties between 18 November 2004 and 1 December 2004, is set out in detail in our decision in relation of the scope of the inquiry before the Tribunal which we delivered on 17 February 2005 – see Lakes Action Group Association (Incorporated) and Shire of Northam & Anor [2005] WASAT 8 at [5] – [13]. It is not necessary to repeat what is said there. The correspondence set out in those reasons relates to an attempt by the second respondent to clarify the contention that the applicant proposed making at the hearing of the inquiry. The second respondent's uncertainty concerned whether the applicant contended that, as a fact, there was no planning approval for the second respondent's quarry, or alternatively that any planning approval given for the quarry was invalid. The Environmental Defender's Office letter of 30 November 2004 clearly explained that "The appellant says that there is no planning approval for the quarry…".
29 A letter from Hotchkin Hanley, the solicitors for the second
respondent, dated 1 December 2004 then identified what the second respondent contended constituted the planning approval for the quarry, namely a resolution of the council of the shire on 4 May 1990 which was confirmed by letter dated 21 May 1990 from the shire to the applicant. The final paragraph of the letter concluded:
"All of the relevant documents have been available for your inspection. The position is clear. There is no reasonable justification for continuing with the inquiry as there is no basis in fact or in law for the representation made to the Minister. As the inquiry is limited into whether there is planning approval and as that is the position you have stated in your letter to the Tribunal of 30 November 2004, we are instructed to repeat our client's position: if this matter is to proceed, we are to apply for legal costs pursuant to Section 65(2) of the Town Planning and Development Act as the conduct of your clients in persisting
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with the inquiry in the face of such material is frivolous and
vexatious."
30 Following that correspondence, the applicant filed submissions and
an affidavit by Mr Stephen Jennings for the purposes of the hearing which had been set down for 27 January 2005. That was to be the hearing of the merits of the application. Notwithstanding the earlier correspondence, the applicant's submissions, and Mr Jennings' affidavit were clearly directed to questions of the validity of any approval granted, as distinct from the fact of an approval having been granted. The hearing on 27 January 2005 became a debate as to the relevance of that evidence and the scope of the inquiry, rather than the hearing of the merits of the application. In the light of the submissions made, it was necessary for the Tribunal to adjourn the proceedings to consider the matters that had been raised. The Tribunal delivered its decision in relation to that hearing on 17 February 2005.
In resolving again the question of the scope of the inquiry, the Tribunal said this (at [14]):
"The original representation made to the Minister which commenced these proceedings complained that the Second Respondent "has not obtained the planning approval under TPS 2 necessary to commence quarrying at that site". That was the issue determined by Mr McGowan to be the issue that had been referred by the Minister. The correspondence between the parties leading up to the hearing confirmed that to be the issue. The question for determination in relation to that issue is whether, as the Respondents contend, the resolution of Council in April 1990 amounts to a planning approval or not. That question will undoubtedly involve an examination of the documents submitted to Council in relation to that resolution, and the treatment of those documents by Council. That may involve an examination of events both before and after 4 May 1990 although we express no concluded view as to that. But that examination is directed to the question of whether what the Council did amounted to an approval under TPS 2."
32 Thereafter, the matter proceeded to a hearing on 10 May 2005. The
respondents contend that, notwithstanding the clarification of the issue by the Tribunal in its February decision, and the earlier decision by the former Town Planning Appeal Tribunal as to the scope of the inquiry (Lakes Action Group Association (Incorporated) and Shire of Northam & BGC Australia Pty Ltd [2004] WATPAT 195), the applicant persisted
[2005] WASAT 185 (S)
during the course of the hearing to make submissions to the effect that the shire had purported to approve the quarry, but the approval was not valid (see [20] of [2005] WASAT 185).
Did the applicant behave unreasonably?
33 In assessing the nature of the applicant's conduct in the proceedings,
it is appropriate, in our view, to look at three stages of the proceedings. The first stage is the period between referral of the matter to the Town Planning Appeal Tribunal by the Minister up until the exchange of correspondence in November and December 2004. The second stage is the period from 1 December 2004 leading up to and including the hearing on 27 January 2005. The third stage is between delivery of the Tribunal's reasons on 17 February 2005 and the completion of the hearing on 10 May 2005.
34 In our view, there is no basis for any complaint of unreasonable
conduct on the part of the applicant in the first period. The Minister made a reference to the Tribunal which the President of the former Town Planning Appeal Tribunal found to go beyond the representations which could properly be referred under s 18 of the Act. The need to clarify the nature of the inquiry arose not because of the conduct of the applicant but because of the breadth of the issues identified in the Minister's letter of referral. It cannot be said that the applicant behaved unreasonably in participating in the initial debate as to the proper scope of the inquiry. Thereafter, a case management conference took place at which there obviously arose some confusion as to the assertions which the applicant proposed to make at the hearing. That correspondence gave rise to a clarification of the issue which prompted Hotchkin Hanley's letter of 1 December 2004. Up until that point, we can see nothing in the conduct of the applicant which might be construed as unreasonable or vexatious.
35 The second period effectively commenced when the applicant filed
its submissions for the hearing on 27 January 2004 and its affidavits in support. As we found in our decision of 17 February 2005, those submissions, and the affidavit of Mr Jennings, went beyond the matter which was the subject of the inquiry, because it ventilated assertions of invalidity of the first respondent's approval and alleged inadequacies in the approval process that it had undertaken. The filing of those submissions and affidavits created the necessity for the hearing to be converted into yet a further clarification of the scope of the inquiry.
36 In our view, the conduct of the applicant in endeavouring to pursue
that issue at the January hearing was unreasonable. A review of
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Mr McGowan's decision of November 2004 reveals that he specifically identified passages of the Minister's letter of referral which he then found to go beyond the representation that had been made to the Minister and thus the scope of the referral to the Tribunal. He said (at [12]) "The representation that is made, put simply, is that the quarry in question requires planning approval and no planning approval has been obtained".
37 One of the matters which the President of the former Tribunal
identified as going beyond the scope of the representation was set out in [13] of his reasons, namely "Was the approval granted by the shire in 1990 reasonably consistent with a valid planning approval for the purpose of TPS 2…".
38 It was quite clear from Mr McGowan's decision that the question of
the validity of the approval was not open for determination in these proceedings. The position adopted by the applicant in correspondence in November and December 2004 was consistent with that conclusion. From the whole of the correspondence, it is implicit that the applicant appreciated the constraint on the scope of the inquiry. To then attempt to reopen the question of validity of the approval, when the matter subsequently came before the State Administrative Tribunal, was unreasonable. Its consequence was to alter the way in which the first respondent proposed to be involved in the proceedings, and then to alter the nature of the preparation for the hearing set for 27 January 2005, and to convert what should have been a final hearing of the matter into an interim hearing which ultimately merely confirmed the decision which had previously been made by the Town Planning Appeal Tribunal.
39 In our view, this is a case where it is appropriate to exercise the
discretion to order the applicant to meet the respondents' costs of the hearing on 27 January 2005 and the costs of each respondent otherwise thrown away by virtue of the applicant having raised the issue of validity prior to that hearing. The precise extent of those costs is a matter which will need to be determined by a process of assessment.
The third stage in respect to which the question of costs must be considered is the period between the delivery of reasons in February 2005 and the final hearing of the matter.
41 In our reasons of 17 February 2005, we recognised (at [14]) that the
final resolution of the matter would involve an examination of the documents submitted to council in relation to its resolutions and "may
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involve an examination of events both before and after 4 May 1990".
That was the process which subsequently occurred.42 As it happens, the conclusion which the Tribunal reached following
that examination coincided with the position identified by the second respondent's solicitors in their letter of 1 December 2004. That letter asserted that "The position is clear". That may have been to overstate the position. It is not necessary to recount the facts, but the overlap in consideration by council of the proposals for location of the quarry on different parts of the lot, and the concurrent consideration of the matter by the Works Committee (which was presumably more concerned with questions related to the ultimate issue of an extraction licence under the relevant by-laws) and the Town Planning Committee, all led to some degree of uncertainty in relation to the position. In our view, it cannot be said that the position adopted by the applicant was hopeless or unarguable merely because it was ultimately not successful. The matter having been referred to the Tribunal by the Minister, and the Tribunal having determined that it would be necessary to analyse all of the relevant documents, the ultimate hearing of the matter for that purpose was justifiable, and the position adopted by the applicant not unreasonable.
43 The witness statement of Mr Middleton attaching the relevant
council records was necessary to put into context the various minutes and correspondence. That evidence would have been appropriate and necessary for the Tribunal to report to the Minister whether or not the applicant raised issues of validity of the approval.
44 We are mindful that the respondents assert that even at the final
hearing in May, the applicant was making submissions as to the validity of an approval rather than the fact of an approval. It is true that the applicant's position tended to blur the distinction between the two matters. The submissions which we referred to at [20] of our reasons of 28 July 2005 arose in the course of exchanges between members of the Tribunal and counsel for the applicant in the course of the hearing. In our view, it would be unfair to penalise the applicant for making concessions in the course exchanges with the Tribunal where its members were putting propositions to her for the sake of clarification of the applicant's position.
45 In our view, the conduct of the applicant in relation to the hearing
itself cannot be categorised as unreasonable or vexatious and no order for
costs should be made in relation to that portion of the hearing.
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The s 87(6) application
46 In the second respondent's written submissions, passing reference
was made to the proposition that if the applicant's solicitors had not advised their client that the allegation that it made was not sustainable, the solicitors should pay the costs. It did not, however, pursue any claim for an order against the solicitors. On the other hand, the first respondent, in its written submissions, asserted that "the applicants representative appears to have been responsible for the approach taken and … this is a case where the representative of a party has acted in such a way as to cause other parties to incur unnecessary costs". That submission was not elaborated in oral argument.
47 An order that a party's representative pay costs is an alternative to an
order that the party pay the costs. The representative can be ordered to pay "rather than the party" – s 87(6). It is a matter of pure speculation as to the relative involvement of the applicant and its solicitors in the events of January 2005 in relation to which we have found that a costs order should be made. The first assumption that should be made is that the solicitors were acting on instructions at all times. The is no evidentiary basis for an order under s 87(6).
Conclusion
48 For the foregoing reasons, there should be an order that the applicant
pay the costs of each of the first and second respondents in relation to the hearing held on 27 January 2005 and their costs of having to prepare to meet an argument that any planning approval purportedly granted by the shire was invalid. The applications for costs by each of the first and second respondent should otherwise be dismissed.
49 Those costs will need to be assessed if not agreed. That process
should be dealt with as speedily and inexpensively as possible. The parties are encouraged to agree the costs if possible rather than prolong the matter and incur further cost. If agreement cannot be reached within 10 days of the delivery of these reasons, the respondents are each to lodge with the Tribunal an itemised bill of their costs thrown away in relation to the hearing of 27 January 2005. The bill should be prepared by reference to items allowable under the "Costs Determination" applicable to actions in the Supreme Court to the extent that they are analogous to items claimed in the bill. An appointment will then be made for the parties to attend before a member of the Tribunal who will assess the costs and determine the amount to be paid.
[2005] WASAT 185 (S)
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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