Ninan and Anor and Valuer General
[2012] WASAT 248 (S)
•24 MAY 2013
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | VALUATION OF LAND ACT 1978 (WA) |
| CITATION | : | NINAN & ANOR and VALUER GENERAL [2012] WASAT 248 (S) |
| MEMBER | : | MR P McNAB (SENIOR MEMBER) |
| HEARD | : | DETERMINED ON THE DOCUMENTS |
| DELIVERED | : | 20 MARCH 2013 |
| PUBLISHED | : | 24 MAY 2013 |
| FILE NO/S | : | DR 162 of 2011 |
| BETWEEN | : | GEORGE NINAN & ANOR Applicants |
| AND | ||
| VALUER GENERAL Respondent | ||
| Catchwords: |
| Costs - Valuation of land - Unimproved value - Gross rental value - Baseless claims raised in the review - Unsubstantiated allegations of conspiracy, fraud, forgery, corruption and misconduct by respondent, and other agencies and private organisations - Claims for damages - No jurisdiction in Tribunal to consider such claims - Applicants placed on notice not to pursue such claims - Applicants warned of possible costs implications - Applicants filing confusing, repetitive, overlong submissions comprised of mainly irrelevant material - Tribunal finding reviews misconceived and an abuse of process - Applications dismissed - Decisions under review affirmed - Tribunal inviting costs applications by respondent and Executive Officer of Tribunal - Executive Officer declining to make application - Respondent seeking partial indemnity for costs unnecessarily incurred in the sum of $55,000 - Need for restraint in the award of costs - Tribunal finding 'exceptional' case warranting costs order in respondent's favour - Tribunal awarded respondent $55,000 in costs | [2012] WASAT 248 (S) |
| Legislation: | |
| Valuation of Land Act 1978 (WA) | |
| Result: | |
| Costs order made in favour of the respondent | |
| Summary of Tribunal's decision: |
Following the delivery of reasons in Ninan & Anor and Valuer General [2012] WASAT 248, the respondent Valuer General sought, by his solicitors, an award of $55,000 as a partial indemnity to cover the significant legal expenses of responding to the applicants' serious but completely unfounded claims. Moreover, the respondent noted that the Tribunal had ruled that the applicants' claims were, in any case, outside of the Tribunal's jurisdiction. In fact, the actual cost to the State in defending itself and its officers against the applicants' unsubstantiated claims amounted to a considerable sum.
The applicants did not dispute the amounts claimed, the calculation of the amounts claimed or the basis of the respondent's costs claims. Nor did they seek to challenge any of the costs principles discussed in the Tribunal's principal reasons.
Instead, the applicants sought to reargue and to further explain aspects of their case which had already been dismissed. The Tribunal, in effect, declined to permit the applicants to take that course.
The applicants also alleged that they were impecunious; that the use of lawyers was unnecessary; that the Tribunal had encouraged the respondent in this course; and that the Tribunal had not sufficiently warned the applicants of the consequences of the path that they were taking.
| The Tribunal analysed and rejected each of these claims. The applicants held substantial assets in the State. They had provided no evidence of their financial position in relation to these assets. The applicants could not be said to be impecunious on the material available to the Tribunal. The use of lawyers by the respondent was wholly justified, given the nature, gravity and complexity of the applicants' claims. The Tribunal had repeatedly warned the applicants of the possible repercussions (including adverse costs orders) of their conduct in raising such matters. Moreover, despite such express warnings, the applicants had ignored the Tribunal's directions on the nature of the Tribunal's jurisdiction and the material that could be properly lodged in the Tribunal. | [2012] WASAT 248 (S) |
The Tribunal noted that there was generally a need for restraint in costs awards in the Tribunal. Here, the sum claimed was significant in comparison to other costs awards. However, given that the sum had already been, in effect, substantially discounted by the State and given the 'exceptional' nature of the case, such an award was warranted.
The Tribunal therefore ordered that the applicants were to pay the State's costs in the sum of $55,000. The Tribunal allowed the applicants 90 days to pay.
Category: B
Representation:
Counsel:
| Applicants | : | In person |
| Respondent | : | Mr M Danger |
Solicitors:
| Applicants | : | N/A |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Ninan & Anor and Valuer General [2012] WASAT 248
Tran and Town of Vincent [2009] WASAT 123 (S)
Webber v Insurance Commission of Western Australia [2009] WADC 53
[2012] WASAT 248 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1 These are the Tribunal's reasons for awarding to the respondent
Valuer-General the sum of $55,000 for his costs. The reasons should be read in conjunction with the reasons in the principal decision published in this matter: Ninan & Anor and Valuer General [2012] WASAT 248 (principal decision). No appeal has been brought from the principal decision.
2 The Tribunal gave its reasons for decision on costs orally. What
follows is taken from the transcript of those reasons and has been formally
revised and edited for publication.
Costs: legislation and principles
3 In the principal decision, the statutory provisions governing costs are
set out at [76] and it is unnecessary to reproduce them in these reasons. And, at [77] - [79] of the principal decision, the relevant cost principles are discussed in detail. Again, it is unnecessary to reproduce them in these reasons.
Applicants' conduct attracting an adverse costs order
4 Importantly, in the principal decision at [40], [45], [46], [52]
and [72], the Tribunal made certain findings of conduct on the applicants' part which might attract an adverse costs order. Critically, as appears at various points in the principal decision's reasons, the applicants ignored the express warnings of the Tribunal that such conduct might lead down that path.
5 Nothing that I have read in the applicants' written submissions on
costs (see below) has caused me to have any doubt as to the correctness of
these earlier findings.
Invitations to make a costs application
6 At [80] of the principal decision, and as a result of the applicants'
conduct, the Tribunal invited the respondent and, indeed, invited the Executive Officer of this Tribunal to make, if they thought fit, applications in respect of costs. After consideration, the Executive Officer of the Tribunal, by letter to the Tribunal, declined to make any such application. On the other hand, the respondent, by his solicitor, has sought costs, on the basis that:
[2012] WASAT 248 (S)
[t]he respondent, incurred significant expenses responding to baseless claims. Moreover, the claims were outside of the Tribunal's jurisdiction.
(Respondent's written submissions on costs, at [5])
7 The respondent sought costs in the sum of $55,000, noting that,
in fact, over $90,000 had been spent on, as the respondent saw it, non-claimable Valuer General's staff costs. In addition, over 400 hours of legal costs were incurred by the Valuer General's office. The actual costs to the State for lawyers and their paralegals came out at $97,000. These costs have been calculated by reference to the relevant Legal Practitioners (State Administrative Tribunal) Determination in force at the relevant time.
However, the respondent seeks only $55,000 in costs at the rate of $200 per hour for 275 hours of a junior practitioner's time.
Applicants' response
9 In response, the applicants have made submissions which, in part,
seek to reagitate issues dismissed in the review; to further explain aspects of their claims; and to point out what appear to be alleged errors in the principal reasons.
Various irrelevant procedural matters are also raised by the applicants, matters that I have disregarded.
11 To the extent that any errors, if any, were made by the Tribunal in
reconciling and distilling the applicants' various claims - errors which are not accepted - such matters were, of course, just as likely to have originated in the problems caused by the morass of complex, mostly irrelevant and confusing submissions made by the applicants. Unfortunately, these problems are once again evident in the applicants' 12 pages of written costs submissions.
12 In any case, the central claims advanced by the applicants of
misconduct, conspiracy and fraud (dealt with in the principal decision) could not be determined in the Tribunal's jurisdiction and were, in any case, unsupported in any material way other than by mere assertion by the applicants.
13 Again, as I have foreshadowed, the Tribunal has been forced to parse
out from the cost submissions any relevant material. That is, once again, the Tribunal has had to actively look for any 'buried' material relevant to the exercise of the Tribunal's jurisdiction on costs.
[2012] WASAT 248 (S)
Doing the best that I can, and disregarding the applicants' irrelevant material, the applicants appear to advance the following propositions.
15 First, they say they are impecunious. However, the applicants do
own several properties in the State of Western Australia which are, of course, described in the principal reasons. In any event, in terms of costs principles, as has been said in the District Court of this State (Webber v Insurance Commission of Western Australia [2009] WADC 53 per Schoombee DCJ, at [32]):
… [t]he impecuniosity of a plaintiff is not in itself a ground for the Court
departing from the usual order [in respect of costs].
Even if this factor were somehow relevant, the applicants do not provide any material to show why any of these substantial assets could not be disposed of or otherwise charged to produce income to pay any costs order.
16 Secondly, the applicants claim that the use of solicitors by the
respondent was unnecessary and/or was unnecessarily encouraged by the Tribunal. This contention cannot be accepted. Given the gravity of the allegations made against the respondent and his officers, and given the complexity of the review, all directly sourced to the applicants' own conduct and claims, the use of solicitors was wholly justified. This was a choice made by the respondent. It was, in my view, in the circumstances an appropriate choice.
17 Thirdly, the applicants allege, in effect, that if the Tribunal believed
that there was a possibility of the dismissal of the claims, it should not have 'encouraged' the applicants to continue with the case. Alternatively, the applicants appear to be submitting that the Tribunal did not sufficiently 'warn' the applicants, in effect, of the consequences of proceeding as they did. Again, these contentions cannot be accepted. The Tribunal made it abundantly clear as to the nature of its limited review jurisdiction and of the possible consequences of ignoring such matters: see, for example, the orders of the Tribunal reproduced at [19] of the principal reasons.
Discussion on the application of costs principles
18 In summary, the applicants have not sought to challenge the amounts
claimed, the calculation of these amounts or the basis of the respondent's cost claims, nor have they challenged any of the cost principles discussed in the Tribunal's principal reasons. They have instead sought to raise
[2012] WASAT 248 (S)
matters going to the Tribunal's discretion on the question of costs in the
particular case.19 The aim of costs, where it is permissible to grant costs, is not to
punish an unsuccessful party, but rather to indemnify or compensate - and usually then only as partial compensation - the other party in respect of certain expenses to which they have been unnecessarily put.
20 The need for restraint in the amounts awarded for costs in the
Tribunal is discussed, for example, in Tran and Town of Vincent [2009] WASAT 123 (S), at [40] - [42]. Here, I have had particular regard to the complexity and breadth of the matters raised in the review and to the disregard of the Tribunal's directions, resulting in hundreds and hundreds of (unnecessary) pages of irrelevant material being filed by the applicants, material which still had to be read and analysed by the respondent and his solicitors.
21 The respondent has already substantially and properly discounted the
total of the State's true legal costs incurred in the review. In all of the circumstances of the case, the amount claimed of $55,000 is reasonable. I acknowledge that the amount is substantially higher than the general amounts awarded for costs in the Tribunal, but this was an exceptional case justifying a partial indemnity of costs fairly expended by the respondent.
I will hear further from the parties present on the time to be allowed, if any, for the payment of costs.
| Order |
1. Costs in the sum of $55,000 are to be paid within 90 days.
I certify that this and the preceding [22] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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