LAW and TOWN OF VINCENT
[2006] WASAT 263 (S)
•28 SEPTEMBER 2007
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) |
| CITATION | : | LAW and TOWN OF VINCENT [2006] WASAT 263 (S) |
| MEMBER | : | MR D R PARRY (SENIOR MEMBER) |
| HEARD | : | DETERMINED ON THE DOCUMENTS |
| DELIVERED | : | 1 SEPTEMBER 2006 |
| SUPPLEMENTARY | ||
| DECISION | : | 28 SEPTEMBER 2007 |
| FILE NO/S | : | DR 123 of 2006 |
| BETWEEN | : SHIOK MOON LAW |
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
| Costs - Assessment of reasonable costs - Apportionment of costs for one out of four review matters determined together - Professional costs and disbursements including archival search in relation to planning approvals - Local government direction - Direction required immediate cessation of use of most of building as shop and storage - Direction set aside - Unreasonable conduct by local government in issuing direction which precipitated proceedings and in proceedings - Unreasonable failure by local government to undertake search of approvals in relation to the land | [2006] WASAT 263 (S) |
| Legislation: |
State Administrative Tribunal Act 2004 (WA), s 9(b), s 60(2)
Legal Practitioners (Supreme Court) (Contentious Business) Determination
2004 (WA)
Legal Practitioners (Supreme Court) (Contentious Business) Report and
Determination 2006 (WA)
Town Planning and Development Act 1928 (WA), s 10(2)
Result:
Reasonable professional costs and disbursements of the application for review of the direction under s 10(2) of the Town Planning and Development Act 1928 (WA), including reasonable professional costs and disbursements of undertaking a search of the archives of the City of Perth in relation to approvals granted in respect of the property, is assessed at $7814.04
Category: B
Representation:
Counsel:
| Applicant | : | Ms LE Rowley |
| Respondent | : | Ms BK Callanan |
Solicitors:
| Applicant | : | Deacons |
| Respondent | : | Williams Handcock |
Case(s) referred to in decision(s):
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Morea Architects and Town of Vincent; Law and Town of Vincent [2006]
WASAT 263; (2006) 44 SR (WA) 301
[2006] WASAT 263 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The Tribunal made an order, in proceedings for review of a direction
requiring the cessation of use of premises as a shop, that the local government pay the applicant's reasonable professional costs and disbursements of the review. The review was one of four reviews that were determined by the Tribunal together. The parties were unable to agree on the amount of costs and disbursements payable under the order.
The Tribunal assessed reasonable costs and disbursements attributable to the use review on the following basis:
• costs and disbursements that appear to relate exclusively to this review were fully included using the relevant Supreme Court scale by analogy; • costs and disbursements that appear to relate exclusively to another review were fully excluded; • costs and disbursements that appear to relate to the review generally were apportioned on the basis of the approximate proportion of the Tribunal's reasons for decision attributable to the use review using the relevant Supreme Court scale by analogy; and • a reasonable amount was included for the preparation of further itemised invoices requested by the local government.
3 The Tribunal observed that it is a generally no costs jurisdiction and
that its objectives include to minimise the costs to the parties. Where, exceptionally, an order for costs is made, the Tribunal expects the parties and their representatives to take a sensible, pragmatic and broadbrush approach to the reasonable assessment of costs.
In this case, the Tribunal assessed reasonable costs and disbursements payable by the local government at $7814.04.
Background
5 On 1 September 2006, I determined applications for review brought
by Morea Architects and Ms Shiok Moon Law (Ms Law) in relation to decisions made by the Town of Vincent (Town) concerning the use and
[2006] WASAT 263 (S)
physical development of a retail building at Nos 412 – 414 Fitzgerald Street, North Perth (site) – see Morea Architects and Town of Vincent; Law and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301. The applications sought review of:
(i) The deemed refusal of a development application for signage and building works (DR 123 of 2006 between Morea Architects and the Town); and
(ii) Directions given by the Town which required the cessation of shop and storage use of the building and the removal of signage displayed on the building (DR 124 of 2006 between Ms Law and the Town).
6 The proceedings were determined together entirely on the documents
pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The proceedings involved, in effect, the review of four decisions of the Town, namely:
• deemed refusal of development approval for signage; • deemed refusal of development approval for building works; • direction for cessation of shop and storage use (use direction); and • direction for removal of signage (signage direction).
7 In my reasons for decision, I proceeded to review each of the four
decisions in this order. I refused development approval for the signage. I granted development approval for the building works. I set aside the use direction, because use of the site as a shop and ancillary storage did not require development approval under the local planning scheme. I affirmed the signage direction, because the local planning scheme required development approval for the signage, which had not been obtained, and, in the circumstances, it was appropriate to exercise discretion to require the removal of the signage and the restoration of the building façades.
8 Ms Law made an application for an order that the Town pay costs for
her expenses, loss, inconvenience and embarrassment occasioned by the issue of the use and signage directions. I determined that although in review proceedings concerning a local government direction each party
[2006] WASAT 263 (S)
should usually pay its own costs, a costs order was warranted in the circumstances of the case in relation to the review of the use direction, because there was no reasonable basis upon which the direction could have been given. Development approval was plainly not required under the scheme for shop and ancillary storage use of the site, as the Town had itself correctly advised Ms Law when she was contemplating leasing the site as a pharmacy. The Town's conduct in giving the direction was, therefore, unreasonable. Moreover, having formed the view that development approval was required, the Town's conduct was unreasonable in having failed to review available records in relation to whether any approval had been granted, and in failing to withdraw the direction when Ms Law obtained relevant approval plans by a search of the City of Perth's records. However, I determined that there was no basis for departing from the Tribunal's usual practice that each party should pay its own costs in relation to the review of the signage direction. I made the following orders in relation to costs in DR 124 of 2006:
"5. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Town of Vincent must pay Shiok Moon Law's reasonable professional costs and disbursements of the application for review of the direction under s 10(2) of the Town Planning and Development Act 1928 (WA) [use direction], including her reasonable professional costs and disbursements of undertaking a search of the archives of the City of Perth in relation to approvals granted in respect of the property, as agreed or, failing agreement, as assessed by a member of the Tribunal nominated by the President on application by either party in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA). 6. Each party is to pay its own costs of the application for review of the decision to give the direction under s 10(3) of the Town Planning and Development Act 1928 (WA) [signage direction]."
9 As the parties have been unable to agree in relation to the amount of
costs and disbursements payable by the Town to Ms Law under the costs order, the costs assessment has been listed for determination by me entirely on the documents under s 60(2) of the SAT Act.
[2006] WASAT 263 (S)
Ms Law's claim and the Town's response
10 On 11 December 2006, Ms Law's solicitors wrote to the Town
claiming $21 257.52 in satisfaction of the costs order in relation to the use
direction. Ms Law's solicitors' letter includes the following:"You will recall that the Tribunal awarded costs in our favour in relation to the section ten notices and ordered each party to pay their own costs in relation to the signage issues. To some extent, our costs in relation to the two issues are intertwined. Whilst it is possible to extract the appropriate disbursements attributable to each, we think that it is appropriate to split the profit costs two-thirds on the section ten issues and one-third on the signage issues as considerably more time and attention was devoted to the section ten matters and the arguments on costs." (Emphasis in bold added.)
11 Although Ms Law's submissions on the costs assessment assert that
her solicitor "made the proposal that two-thirds of the total costs should be attributable to the work done on the [use direction] matter [only]", it is clear from the extract in the preceding paragraph that the $21 257.52 claim was in respect of both the use direction and the signage direction. As noted earlier, I required the Town to pay the costs of the use direction proceedings, not the signage direction proceedings.
12 The Town rejected Ms Law's claim and requested the Tribunal to
assess reasonable costs and disbursements in accordance with the costs order. Ms Law's solicitors then filed a copy of their letter dated 11 December 2006 to the Town and attached itemised accounts to Morea Architects and Ms Law which did not differentiate between costs attributable to each of the four reviews.
13 On 19 February 2007, the Town's solicitors requested Ms Law's
solicitors to provide an itemised schedule setting out the costs claimed solely in relation to the review concerning the use direction. Under cover of a letter dated 17 May 2007, Ms Law's solicitors provided itemised invoices of its and Ms Law's architect's accounts, claiming $24 198.21 in relation to the use direction. Ms Law's solicitors also indicated that the preparation of the itemised invoice involved 19 hours of work by an articled clerk at a total cost of $3008.14. Ms Law's solicitors requested the Town's cheque for $27 206.35 on account of the costs and disbursements payable by the Town under the costs order. Under cover of
[2006] WASAT 263 (S)
a letter dated 5 June 2007, Ms Law's solicitors provided copies of the
itemised invoices to the Tribunal.14 In accordance with the Tribunal's directions, the Town filed
submissions in relation to the costs assessment on 13 July 2007 and Ms Law filed submissions in relation to the costs assessment on 31 July 2007. Ms Law now claims costs and disbursements in the amount of $27 507.64. The Town contends that it is excessive to attribute two-thirds of Ms Law's total costs of the proceedings to the use direction, which was one of four matters determined by the Tribunal. The Town seeks the Tribunal's determination of a reasonable amount for Ms Law's costs and disbursements.
Assessment of reasonable costs and disbursements
In J & P Metals Pty Ltd and Shire of Dardanup [2006]
WASAT 282 (S), the Tribunal stated at [9] as follows:
"There is no prescribed scale in relation to work done in relation to proceedings before this Tribunal. Assessing costs for the purpose of s 87 of the [SAT Act] will usually require a determination as to what costs are reasonable given the nature of the matter, its complexity, its importance, possibly its urgency, and the amount of time and effort required to properly prepare and present the case. Consideration of issues of that nature may be assisted by analogy with other legal work for which a statutory scale is applicable. Scales are, however, no more than an indication of what might be thought reasonable for certain categories of work. If a scale is to be used for that purpose, it will not always be the scale applicable to Supreme Court proceedings. There will be cases where the subject matter will make the determination in relation to Magistrates Court civil proceedings more appropriate by way of analogy. The Tribunal will always strive to maintain proportionality between the subject matter of the proceedings and the costs associated with the proceedings."
16 In this case, I consider that the appropriate analogy is to legal work
which is subject to the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 (WA) (2004 Determination), which operated from 1 July 2004 to 30 June 2006, and the Legal Practitioners (Supreme Court) (Contentious Business) Report and Determination 2006 (WA) (2006 Determination), which has operated since 1 July 2006. An application for review of a direction requiring the owner or other person
[2006] WASAT 263 (S)
undertaking development of land to cease use of the land is likely to involve some factual and legal complexity, and potentially significant consequences for the owner or other developer. Non-compliance with such a direction, unless stayed in the interim and then set aside by the Tribunal, involves significant criminal liability. In this case, although the Tribunal had little difficulty in determining that the use of the site as a pharmacy shop and ancillary storage is not a contravention of the relevant local planning scheme, the direction had the significant consequence of requiring Ms Law to cease carrying on her profession and earning her livelihood at the site. Unless stayed by the Tribunal and set aside, non-compliance with the use direction would have had serious criminal consequences for Ms Law.
17 Ms Law had no alternative but to seek review of the direction by the
Tribunal in order to continue to practice her profession and earn a living from the use of the site. It was reasonable and appropriate for her to approach the review proceedings having regard to the significant adverse consequences of failure. The appropriate analogy in this case is, therefore, to scales applicable in relation to Supreme Court work.
18 Furthermore, it was reasonable and appropriate, in light of the
importance of the proceedings for her professional practice and livelihood, for Ms Law to be represented throughout the matter by a senior legal practitioner who is a partner of her solicitors' firm. The same senior legal practitioner conducted essentially the whole of the proceedings.
19 The Tribunal's task in this assessment is to determine what
proportion of Ms Law's total professional costs and disbursements in conducting the proceedings is reasonably attributable to the use direction, including the archival search. Ms Law's solicitors originally estimated that two-thirds of her total costs and disbursements is attributable to both the use direction and the signage direction. On the basis of the further itemised invoices, Ms Law's solicitors subsequently increased her total claim to $24 198.21 which is approximately 77% of her total costs and disbursements incurred in the proceedings.
20 Having determined the proceedings, I consider that apportionments
of two-thirds and 77% are both significantly excessive and unreasonable, having regard to the scope of the proceedings and the issues for determination.
[2006] WASAT 263 (S)
21 A rough, but fair, guide as to the reasonable apportionment of costs
attributable to the four reviews undertaken by the Tribunal is provided by the Tribunal's reasons for decision. The reasons for decision consist of the following parts:
• Summary and introduction – approximately three pages; • Statutory planning context in relation to the development application for signage and building works – approximately two and one-half pages; • Assessment of the development application for external signage – approximately five pages; • Assessment of the development application for building works – approximately one page; • Consideration of an argument as to whether the directions were invalid – approximately one and one-half pages; • Discussion in relation to 1965 building licence plans and approvals which relate to the review of the use direction – approximately one page; • Identification of factors which guide the exercise of discretion to give a direction – approximately one page; • Assessment of the use direction – approximately half a page; • Assessment of the signage direction – approximately two pages; • Assessment of the application for costs in relation to the directions – approximately five pages; • Conclusion and orders – approximately two pages.
22 It appears from the foregoing breakdown of the reasons for decision
that, excluding the summary, introduction, analysis of the application for costs, conclusion and orders, the reviews in relation to the development application occupied approximately 60% of the reasons and the reviews of the directions occupied approximately 40% of the reasons. It is also apparent that approximately half of the section of the reasons concerning the directions was attributable to the use direction. The review of the use
[2006] WASAT 263 (S)
direction, therefore, involved approximately 20% of the Tribunal's
substantive determination of the proceedings.
I have carefully reviewed both Ms Law's solicitors' itemised accounts provided to the Tribunal under cover of the letter dated 23 January 2007 and the further itemised invoices of Ms Law's solicitors and architect provided to the Tribunal under cover of the letter dated 5 June 2007. I consider that the determination as to what costs and disbursements are reasonably attributable to the use direction, including the archival search, should be undertaken on the following basis:
• Where an item in Ms Law's solicitors' or architect's itemised invoices appears to relate exclusively to the review of the use direction, including the archival search, that item should be fully included in the assessment, using the relevant Supreme Court scale for a senior legal practitioner for legal costs and the actual amount incurred, if reasonable, in the case of disbursements; • Where an item in Ms Law's solicitors' or architect's itemised invoices appears to relate exclusively to the development application or review concerning the development application, that item should be excluded from the assessment; • Where an item in Ms Law's solicitors' itemised invoice appears to relate to her application for costs, the assessment should include half that item, using the relevant Supreme Court scale for a senior legal practitioner; • Where an item in Ms Law's solicitors' or architect's itemised invoices appears to relate to the conduct of the proceedings generally, 20% of that amount should be attributed to the review of the use direction, including the archival search, using the relevant Supreme Court scale for a senior legal practitioner; and • A reasonable amount should be included for the preparation of the further itemised invoices provided in May 2007.
24 In relation to the last bullet point, as the Tribunal said in
J & P Metals Pty Ltd and Shire of Dardanup at [38], it expects "that
[2006] WASAT 263 (S)
representatives of parties before the Tribunal will approach a proceedings in a way that minimises costs to their clients". This expectation extends, perhaps even more strongly, to the assessment of costs. The Tribunal is a generally no costs jurisdiction. Its objectives include to "minimise the costs to the parties": SAT Act s 9(b). Where, exceptionally, an order for costs is made, the Tribunal expects the parties and their representatives to take a sensible, pragmatic and broadbrush approach to the reasonable assessment of costs, such as the approach set out above.
25 In this case, the itemised accounts provided by Ms Law's solicitors to
the Town in December 2006 were adequate to assess costs. As the Town's solicitors requested Ms Law's solicitors to provide a further itemised schedule, it is reasonable that the Town pay a reasonable amount for that work. However, I consider that 19 hours is excessive and unreasonable in light of the work involved. In my opinion, eight hours would be a reasonable period for this work. I therefore include a component of eight hours for this item using the relevant Supreme Court scale for a clerk.
26 On the basis set out above, I consider that Ms Law's reasonable
professional costs and disbursements of the application for review of the use direction, including her reasonable professional costs and disbursements of undertaking the archival search, are as follows:
[2006] WASAT 263 (S)
| Category of Costs and Disbursements | Amount |
| Professional legal costs attributable exclusively to use direction, | $2352.90 |
| including archival search, (6.9 hours at $341 per hour) | |
| Professional disbursements attributable exclusively to use | $272.36 |
| direction, including archival search – archival search, half SAT application fee for DR 124/2006, photocopying during archival search and company search | |
| Other professional disbursements apportioned 20% to review of | $863.03 |
| use direction – courier and taxi $4.48 and architect's fee $858.55 (20% of architect's fee of $4292.75 charged in April, May and June, 2006*) | |
| Half professional legal costs for costs submissions (1.25 hours at | $426.25 |
| $341 per hour) | |
| 20% of professional legal costs for proceedings generally | $2491.50 |
| (excluding costs attributable exclusively to review of use direction, including archival search, and development application and review) (32.7 hours at $341 per hour and 3.6 hours at $363 per hour) | |
| Professional legal costs for preparation of further itemised | $1408.00 |
| invoices (8 hours at $176 per hour) | |
| Total | $7814.04 |
*Although the itemised invoice from Ms Law's architect also included costs incurred in December 2005 and in January and February 2006, this work cannot be included in the cost assessment because it pre-dates the issue of the use direction on 24 March 2006.
27 This analysis apportions a total of 15.41 hours by a senior legal
practitioner to the conduct of the proceedings for review of the use direction, including the archival search, as well as architect disbursements of $858.55 and other disbursements of $276.84. I consider that 15.41
[2006] WASAT 263 (S)
hours by a senior legal practitioner is a reasonable period to have spent in conducting the proceedings for review of the use direction and the archival search. I consider that $6406.04 is a reasonable amount for costs and disbursements incurred in relation to the use direction, including the archival search, having regard to the nature of the review in relation to the use direction, its complexity and importance and the amount of time and effort required to properly prepare and present the case. I also consider that 8 hours – rather than 19 hours – is reasonable for the preparation of the further itemised invoices requested by the Town.
Conclusion
28 For the foregoing reasons, I assessed Ms Law's reasonable
professional costs and disbursements of the use direction, including her reasonable professional costs and disbursements of an archival search, at $7 814.04.
| Order |
I make the following order in DR 124 of 2006:
1. The respondent is to pay the applicant's costs and disbursements assessed at $7814.04 in accordance with Order 5 made on 1 September 2006.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
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