Nairn v Metro Central Joint Development Assessment Panel - [2020] WASCA 183

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NAIRN -v- METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2020] WASCA 183
CORAM:   MURPHY JA
BEECH JA
VAUGHAN JA

HEARD:   21 OCTOBER 2020
DELIVERED          :   3 NOVEMBER 2020
FILE NO/S:   CACV 147 of 2019
BETWEEN:   KARYL ANNE NAIRN
First Appellant
RICHARD RADCLIFFE HAWLEY
Second Appellant
AND
METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
First Respondent
STATE ADMINISTRATIVE TRIBUNAL
Second Respondent
HILLAM ARCHITECTS
Third Respondent
EDGE HOLDINGS NO 6 PTY LTD
Fourth Respondent

FILE NO/S: CACV 13 of 2020
BETWEEN: KARYL ANNE NAIRN
First Appellant
RICHARD RADCLIFFE HAWLEY
Second Appellant
AND
METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
First Respondent
STATE ADMINISTRATIVE TRIBUNAL
Second Respondent
HILLAM ARCHITECTS
Third Respondent
EDGE HOLDINGS NO 6 PTY LTD
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ACTING JUSTICE STRK
Citation: NAIRN -v- METRO-CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2018] WASCA 18 (S2)
File Number            :   CACV 58 of 2017

Catchwords:

Costs - Appeal from decision pursuant to O 66 r 55 Rules of the Supreme Court 1971 (WA) allowing application for review of a taxation - Judicial review application referred to Court of Appeal under O 56 r 5(4) RSC - Whether costs should be recovered by reference to item 23 of Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA) - Proper construction of O 66 r 18(1) RSC - Finding that it was open to taxing officer to allow costs by way of analogy to item 23

Procedure - Leave to appeal - Where new point raised on appeal - Solely a question of law - Material facts incontrovertible - Costs consequences of entertaining and allowing appeal on basis of new point raised on appeal

Legislation:

Interpretation Act 1984 (WA), s 44
Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA), cl 4, cl 7, cl 12, cl 13
Rules of the Supreme Court 1971 (WA), O 56 r 5, O 66 r 11, O 66 r 13, O 66 r 18, O 66 r 19, O 66 r 21, O 66 r 23, O 66 r 53
Supreme Court (Court of Appeal) Rules 2005 (WA), r 68, pt 5
Supreme Court Act 1935 (WA), s 4, s 60

Result:

Appeal allowed

Category: B

Representation:

CACV 147 of 2019

Counsel:

First Appellant	:	F A Robertson
Second Appellant	:	F A Robertson
First Respondent	:	No Appearance
Second Respondent	:	No Appearance
Third Respondent	:	No Appearance
Fourth Respondent	:	No Appearance

Solicitors:

First Appellant	:	Squire Patton Boggs
Second Appellant	:	Squire Patton Boggs
First Respondent	:	No Appearance
Second Respondent	:	No Appearance
Third Respondent	:	No Appearance
Fourth Respondent	:	Lavan

CACV 13 of 2020

Counsel:

First Appellant	:	F A Robertson
Second Appellant	:	F A Robertson
First Respondent	:	No Appearance
Second Respondent	:	No Appearance
Third Respondent	:	No Appearance
Fourth Respondent	:	No Appearance

Solicitors:

First Appellant	:	Squire Patton Boggs
Second Appellant	:	Squire Patton Boggs

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WASCA 183
Decision Date: 3 NOVEMBER 2020

CaseChat Overview and Summary

In the case of Nairn v Metro Central Joint Development Assessment Panel, the applicant, Nairn, sought judicial review of a decision made by the Metro Central Joint Development Assessment Panel. The applicant contested the taxation of costs associated with a review of a decision made by the panel. The matter was heard in the Supreme Court of Western Australia and subsequently appealed to the Court of Appeal. The primary issue before the Court of Appeal was whether the costs incurred should be recovered by reference to item 23 of the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA). Specifically, the Court of Appeal had to determine the proper construction of O 66 r 18(1) of the Rules of the Supreme Court 1971 (WA) in relation to the taxation of costs and whether it was appropriate to allow costs by way of analogy to item 23.

The Court of Appeal found that it was open to the taxing officer to allow costs by way of analogy to item 23 of the Determination. The court considered that the material facts were incontrovertible and that the issue raised on appeal was solely a question of law. Consequently, the Court of Appeal concluded that it was appropriate to entertain and allow the appeal based on the new point raised. The court emphasised that the decision to allow costs by analogy to item 23 was consistent with the principles of judicial review and the proper construction of the relevant rules. The Court of Appeal's decision clarified the approach to be taken in similar cases involving the taxation of costs in judicial review proceedings.

The Court of Appeal allowed the appeal and directed that the costs incurred by the applicant be assessed by reference to item 23 of the Determination. The court further noted that the consequences of entertaining and allowing the appeal based on the new point raised would be considered when determining the costs to be awarded. This outcome provides guidance to parties involved in judicial review proceedings regarding the assessment of costs and the appropriate application of the rules governing taxation.

Orders