Marshall v The Town Planning Appeal Tribunal of Western Australia
[2006] WASCA 146 (S)
•26 JULY 2006
MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2006] WASCA 146 (S)
| Link to Appeal : | [2008] WASCA 258 [2008] WASCA 258 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 146 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:148/2003 | 23 NOVEMBER 2005 | |
| Coram: | MALCOLM CJ McLURE JA MURRAY AJA | 26/07/06 | |
| 18/10/06 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appellants ordered to pay costs | ||
| B | |||
| PDF Version |
| Parties: | RAYMOND MARSHALL INGRID MARSHALL THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA THE WESTERN AUSTRALIAN PLANNING COMMISSION THE HONOURABLE ALANNAH MACTIERNAN, MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE |
Catchwords: | Appeal Costs Turns on own facts |
Legislation: | Nil |
Case References: | Marshall & Anor v The Town Planning Appeal Tribunal of Western Australia & Anor [2006] WASCA 146 Marshall v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2006] WASCA 146 (S) CORAM : MALCOLM CJ
- McLURE JA
MURRAY AJA
DECISION : 18 OCTOBER 2006 FILE NO/S : FUL 148 of 2003 BETWEEN : RAYMOND MARSHALL
- INGRID MARSHALL
Appellants
AND
THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA
First Respondent
THE WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent
- INGRID MARSHALL
Appellants
- AND
THE HONOURABLE ALANNAH MACTIERNAN, MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J, ROBERTS-SMITH J, McLURE J
Citation : MARSHALL - v - THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA [2004] WASCA 202
File No : FUL 147 of 2003, FUL 148 of 2003
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
File No : CIV 2358 of 2004
Catchwords:
Appeal - Costs - Turns on own facts
Legislation:
Nil
Result:
Appellants ordered to pay costs
(Page 3)
Category: B
Representation:
FUL 148 of 2003
Counsel:
Appellants : In person
First Respondent : Mr R M Mitchell
Second Respondent : Mr R M Mitchell
Solicitors:
Appellants : In person
First Respondent : State Solicitor's Office
Second Respondent : State Solicitor's Office
FUL 176 of 2004
Counsel:
Appellants : In person
Respondent : Mr R M Mitchell
Solicitors:
Appellants : In person
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Marshall & Anor v The Town Planning Appeal Tribunal of Western Australia & Anor [2006] WASCA 146
Marshall v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276
Case(s) also cited:
Nil
(Page 4)
1 JUDGMENT OF THE COURT: These reasons concern the costs arising from this Court's decision in Marshall & Anor v The Town Planning Appeal Tribunal of Western Australia & Anor [2006] WASCA 146. There were two matters before the Court. In FUL 148 of 2003 Mr and Mrs Marshall ("the appellants") applied for a stay of an order dismissing, and leave to reopen, the appeal in Marshall v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276. The Court dismissed that application with costs.
2 In FUL 176 of 2004 the appellants sought leave to appeal from a decision of Master Sanderson refusing an order nisi for a writ of certiorari. That application was also unsuccessful. On 26 July 2006, McLure JA handed down the reasons in both matters and made orders. In FUL 176 of 2004 her Honour made orders in terms of a minute handed up by the respondent. The minute (and thus the orders) were:
1. The appeal be dismissed.
2. The appellants pay the respondent's costs of the appeal, including reserved costs.
3 On 7 August 2006, before the orders were extracted, McLure JA recalled the costs order in FUL 176 of 2004 to give the appellants the opportunity to file written submissions on costs for determination by the coram.
4 In FUL 176 of 2004 the appellants challenged the decision of Master Sanderson dismissing their application for an extension of time for an order nisi for a writ of certiorari to quash the respondent's decision to approve City of South Perth Town Planning Scheme 6 ("TPS6") and a declaration that City of South Perth Town Planning Scheme 5 ("TPS5") was ultra vires. The Court concluded that Master Sanderson's reasons were inadequate so as to give rise to appealable error. However, the Court had the necessary material to determine the application which had been before the Master and did so. The Court concluded that the issues raised by the appellants concerning the validity of TPS5 had already been considered and determined against them in prior proceedings. The Court also concluded that the appellants' substantive objections to TPS6 were the same as TPS5 and that the reasoning and conclusions in the earlier decisions applied by analogy to TPS6. The only fresh matter raised in relation to TPS6 was a claim that it was invalid on the ground that statutory procedural steps had not been properly taken. The Court concluded that the grounds relied on by the appellants to challenge TPS5
(Page 5)
- and TPS6 did not raise an arguable case. Accordingly, the appeal was dismissed.
5 As we read the appellants' submissions on costs, they primarily concern matters going to the correctness of this Court's decision and the correctness of the earlier decisions of the Court. The costs must be determined on the basis that the decision of this Court and the earlier decisions relied on, are correct unless and until overturned on appeal. The matters relied on by the appellants do not provide any reason why the Court's discretion as to costs should not be exercised against them.
6 The appellants also contend that the respondent encouraged an appeal as of right from Master Sanderson's dismissal of the application. As appears from the respondent's submission, this may be a reference to the fact that counsel for the respondent informed Master Sanderson that the orders the subject of the appellants' application for leave were final orders for which leave was not required. As appears in [11] of McLure JA's reasons for judgment, the appellants' applications for leave were not opposed by the respondent and leave was granted. In the circumstances, it is of no consequence whether the appeal was as of right or by leave. We accept the respondent's submission that there is no evidence the respondent did anything to encourage the appellant to pursue FUL 176 of 2004 or otherwise acted unreasonably in causing the commencement or continuation of the matter or to increase the costs of either party.
7 The general rule is that the successful party to a matter is entitled to recover his or her costs. In this case, the appellants were entirely unsuccessful on all challenges to the validity of TPS5 and TPS6. They did not raise an arguable case. We have had regard to the fact that the Master failed to give adequate reasons for his decision but balanced against that is the fact the appellants were in large measure rearguing matters that had already been considered and determined against them in previous decisions. We are satisfied that the appropriate course is to order, as we hereby do, that the appellants pay the respondent's costs of the appeal, including reserved costs, to be taxed.
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