R v Resource Management and Planning Appeal Tribunal; ex parte Walter and Wissler
[2001] TASSC 136
•23 November 2001
[2001] TASSC 136
CITATION:R v Resource Management and Planning Appeal Tribunal; ex parte Walter & Wissler [2001] TASSC 136
PARTIES: R
v
RESOURCE MANAGEMENT AND
PLANNING APPEAL TRIBUNAL
WALTER, R
WISSLER, P; ex parte
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 83/2000
DELIVERED ON: 23 November 2001
DELIVERED AT: Hobart
HEARING DATES: 29 August 2001
JUDGMENT OF: Crawford, Slicer and Evans JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellants: In person
Respondent: D R Armstrong
Solicitors:
Appellants: In person
Respondent: In person
Judgment Number: [2001] TASSC 136
Number of Paragraphs: 59
Serial No 136/2001
File No FCA 83/2000
THE QUEEN v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL; ex parte R WALTER AND P WISSLER
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
SLICER J (Dissenting)
EVANS J
23 November 2001
Order of the Court
Appeal dismissed
Serial No 136/2001
File No FCA 83/2000
THE QUEEN v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL; ex parte R WALTER AND P WISSLER
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
23 November 2001
This is an appeal from an order of Underwood J made on 17 April 2000, by which his Honour ordered (inter alia) that an order nisi dated 28 July 1999 be discharged. I will call it an order nisi for the sake of brevity, but it was in fact what is known as a general order to show cause.
The appellants were obliged to set forth in their notice of appeal the grounds of the appeal. They did not do so with clarity, but I will deal with what appear to be the grounds, as stated in that document, two sets of written submissions and oral argument.
The first ground raised in the notice of appeal is that the learned judge erred by discharging the order nisi without conducting a hearing and without the respondent Tribunal appearing. There is plainly no merit in the ground. There was a hearing at which the appellants were represented by counsel. The ultimate result of the hearing was that the order nisi was discharged and the appellants were ordered to pay the costs of Mr G Ridler, a person who had been served with the order nisi. The order nisi was discharged as a consequence of all affidavit evidence in support of the order nisi being removed from the file pursuant to the learned judge's orders. As a result of that there was no evidence to support any of the grounds in the order nisi. The appellants conceded that to be so when they appeared before this Court. There was nevertheless a hearing of the order nisi before it was discharged for lack of evidence. The discharge was not affected by the non-appearance of the Tribunal at the hearing. I will deal with that aspect further in due course.
The second ground of appeal which appears from the notice of appeal is that the Resource Management and Planning Appeal Tribunal had no jurisdiction to make the orders made by it. The order nisi, which was made by Wright J on 28 July 1999, concerned the Tribunal's orders made on 10 December 1998 and 15 March 1999. The Tribunal's order of 10 December 1998 was that the appellants' application to the Tribunal dated 18 May 1998 was dismissed. The Tribunal undoubtedly had jurisdiction to make an order of that kind. The Tribunal's order of 15 March 1999 was that the appellants pay two thirds of Mr Ridler's costs of the application. The Tribunal undoubtedly had jurisdiction to make an order of that kind. There is plainly no merit in the appellants' claim that the Tribunal was without jurisdiction to make the orders. No doubt the appellants' real argument is that the orders, which were within jurisdiction, were unjustified.
The third ground of appeal which can be discerned from the notice of appeal is that the learned judge erred by allowing Mr Ridler to appear before him to show cause why the order nisi should not be made absolute, whereas he was not a respondent to the order nisi. There is plainly no merit in the ground. The Rules of Court, O72, r2(1)(e) required a judge who made a general order to show cause, to specify in the order any person, other than the respondent Tribunal, who, in the opinion of the judge, was required to be served because that person might be affected by the relief sought. Plainly Mr Ridler was such a person and the order nisi of 28 July 1999 required that Mr Ridler be served with the order and affidavits in support. Mr Ridler had every right to appear and to be heard.
The fourth ground of appeal which can be discerned from the notice of appeal is that the learned judge erred when he made an order for costs in favour of Mr Ridler, notwithstanding that he was not a respondent to the order nisi. There is no merit in the ground. By the Rules of Court, O80, r1(1), the costs of proceedings were in the discretion of the judge. That Mr Ridler was not named as a respondent to the order nisi did not prevent him from obtaining an order for costs. He was clearly entitled to the order once the appellants' order nisi had been discharged consequent upon their failure and inability to put legally admissible evidence before the learned judge on the return of the order nisi.
The appellants filed a written outline of submissions on 14 August 2001. Some of those submissions were not the subject of grounds in the notice of appeal. However I will deal with what was put by the appellants in the same order as is contained in their outline.
The appellants submitted that the learned judge had no jurisdiction to make the order discharging the order nisi. His Honour's jurisdiction in that regard was undoubted. However the appellants referred to the Supreme Court Civil Procedure Act 1932, presumably to s75(12)(b), which provides that a person who is aggrieved by a determination which is illegal on its face is entitled as of right to have the determination quashed. The answer to such an argument is that the determinations and orders of the Resource Management and Planning Appeal Tribunal, which were the subject of the order nisi, were not illegal on their face. One order was the dismissal of the appellants' application to the Tribunal. The Tribunal undoubtedly had jurisdiction to make such an order. The other order was one requiring the appellants to pay two thirds of the costs of Mr G Ridler. The Tribunal clearly had jurisdiction to make that order.
The jurisdiction of the Tribunal to make those orders is obvious. The attack on those orders by the appellants was not one concerning jurisdiction. Its basis was that they were not justified and should not have been made. To succeed with their arguments in that regard, it was necessary for the appellants to satisfy the judge who presided over the return of the order nisi that the Tribunal's orders should not have been made. To do that, the appellants needed to produce to the judge evidence sufficient to persuade the learned judge accordingly. I will return to that aspect of the appeal later.
In the written outline of submissions on behalf of the appellants which were filed on 14 August 2001, the appellants complained that the order nisi was not made absolute and the Tribunal's decisions remain unquashed. That is not a ground upon which the appeal can succeed, but merely a statement of what the appellants failed to achieve before Underwood J and what they seek to achieve from this Court.
The appellants also complained to this Court about the decisions made by the Tribunal on 23 September 1998 that the appellants should provide evidence to the Tribunal to demonstrate their capacity to meet an order for costs and that the hearing of their application under the Land Use Planning and Approvals Act 1993, s64, be stayed pending the provision of such evidence (subsequently the Tribunal did not persist with those decisions). The order nisi did not call for cause to be shown why those decisions should not be quashed. In any event, quashing them would not have affected the eventual outcome of the case and neither the learned judge nor this Court have needed to consider them.
The appellants further complained that the Tribunal was not in court at the time the learned judge discharged the order nisi. The Tribunal had no obligation to be in court at that time and the failure of the Tribunal to be represented was not an impediment to the order being discharged. A notice of submission had been filed on behalf of the Tribunal pursuant to the Rules of Court, O72, r3(5). It was further submitted by the appellants that the order nisi "was self-sufficient" and that as the Chairman of the Tribunal did not appear to show cause why the order nisi should not be made absolute, the order absolute should automatically have been made. There is no merit in the submission. By its notice of submission, the Tribunal undertook to submit to whatever orders the court made. In accordance with the practice of the court, the making of the order nisi recognised that the appellants appeared to have an arguable case, entitling them to argue for a final order on a later occasion, but it gave them no prima facie entitlement to have the final order made. To obtain that order they needed to satisfy the judge they were entitled to it upon the grounds stated in the order nisi. To satisfy the judge of that, it was necessary that, with the assistance of their counsel who represented them they place before his Honour admissible evidence sufficient for the purpose. The general order to show cause placed them in no advantageous position vis-a-vis the unrepresented Mr Ridler.
In the written outline of the appellants' submissions filed on 14 August, there appears as ground 3A a submission that the Crown solicitor is the solicitor for the Crown, but the learned judge allowed someone other than the Crown, that is to say a private party in the form of Mr Ridler, to appear and "show cause" on behalf of the Tribunal. There is no merit in the point. Mr Ridler did no such thing. As already stated, the order nisi required Mr Ridler to be served because he had a sufficient interest in the matter. He was entitled to appear and oppose the orders sought by the appellants. As a further consequence, the court had jurisdiction to make an order for costs in his favour, if the circumstances warranted the making of that order.
The appellants filed written supplementary submissions on 16 August. Insofar as I have not already done so, I will deal with those submissions.
The first such submission complains that the Tribunal had no power to make an order for security for costs or an order directing an inquiry into that issue. The order nisi of 28 July 1999 did not call for cause to be shown why any such order or direction should not be quashed and neither the learned judge nor this Court should have considered the issue.
It was further submitted by the appellants that regardless of the affidavits which the learned judge ordered to be removed from the file, there was sufficient material upon which his Honour ought to have held in their favour. There is no merit in this submission. Once the orders removing the affidavits had been made, there was no evidentiary material upon which the order absolute could be made. That point was made by the learned judge to the appellants' counsel, who then sought an adjournment to enable proper affidavit material to be put before the court. The application for the adjournment was refused. They have not appealed against that refusal. As a result of there then being no evidentiary material upon which the making of a final order in favour of the appellants could be justified, they were doomed to fail.
It was further stated in the written supplementary submissions of the appellants that the learned judge erred in the exercise of his discretion to remove from the court file the three affidavits upon which they wished to rely for the making of the order absolute. However, on the hearing of this appeal Ms Wissler stated that it was not the appellants' case (and Mr Walter did not demur) that the affidavits should not have been ruled inadmissible and removed from the file. In any event, there is no material before this Court which enables the point to be determined in the appellants' favour. The affidavits are no longer on the court file and they are not in the appeal book filed by the appellants, nor did they produce copies for the consideration of the Court.
The appellants also submitted that the learned judge erred in failing to advert to the provisions of the Resource Management and Planning Appeal Tribunal Act, s16. His Honour was under no obligation to do so. The section deals with procedures to be followed by the Tribunal on the hearing of appeals before it. The section does not apply to the return of an order nisi before the Supreme Court.
Upon the hearing of the appeal, Ms Wissler stated in the course of her submissions from the bar table, that on 21 June 1999 (counsel for) the Tribunal appeared before Wright J in the course of the hearing of the application for the order nisi, said that the Tribunal would submit to whatever order was made, left the Tribunal's file with the Court, which included witnesses' statements and all other material which the Tribunal had received, and left the courtroom. On the hearing of the appeal to this Court, the appellants sought to rely on some of that material. Ms Wissler asserted that all of that material was ordered to be removed from the Tribunal into the Court and the Court (I took her to be referring to Underwood J) should have had regard to it. There is no record of any such order having been made. Further, although it appears that some of the material was included in the set of Judge's Papers prepared by the solicitors for the appellants for the hearing before Underwood J, no attempt was made by the appellants' counsel to have his Honour consider it. It was not part of the evidence before Underwood J and this Court may not have regard to it. Mr Ridler's counsel stated that none of the Tribunal's reasons for decisions were contained in the rejected affidavits, a fact which the appellants did not challenge.
The appellants sought to rely on the fact that Wright J must have been satisfied with the affidavit evidence, otherwise the order nisi would not have been made. The circumstances of the making of the order nisi were not part of the issues which should have concerned Underwood J, who needed to be satisfied that the appellants had established their case for an order absolute upon the basis of evidence with respect to which his Honour was satisfied was admissible. He was not restrained by the view Wright J had taken of the material.
I add that the fact that the statutory declaration and affidavits were all defective had been pointed out to the appellants by a judge on at least one prior occasion. On 10 February 2000, on the return of the order nisi before Evans J, his Honour recorded that he had a prolonged interchange in which he endeavoured to explain to the appellants that the evidence in three documents referred to as affidavits was inadequate. His Honour noted that the appellants accepted that there was an onus on them to put admissible evidence before the Court. Evans J recorded that he made it clear to them that if they proceeded "on the basis of the three documents which have been referred to as affidavits or statutory declarations" their "application is likely to be dismissed for lack of evidence". The appellants then applied for an adjournment to file a further affidavit. Mr Ridler opposed the adjournment, but his Honour granted it, recording his ruling in the following terms:
"The prosecutors are representing themselves and it seems to me that their failure to have put in evidence in proper form in part arises from their failure to understand the procedure they are involved in. They appear to have believed that the order to show cause has put onus of proof on the Tribunal and is plainly not the case. The onus of proof remains on the prosecutors."
When opposing the further adjournment which was sought by the appellants' counsel from Underwood J on 17 April 2000, Mr Ridler referred to the earlier hearing before Evans J. No doubt with some hyperbole, he submitted:
"At the first hearing which you yourself sat in on you advised the applicants to actually go away and prepare a proper affidavit. At the next hearing Evans J, I sat here for three hours while he went over and over again why their affidavits were not proper affidavits and to go away and actually prepare a proper affidavit and he basically told them if they proceeded on that day they would fail because their affidavits were not correct. They understood that after three hours of being told sixty five times that their affidavits were not correct, not in the proper format and contained no evidence. And here again today - oh, just before I go on to that, at the end of that, at the discretion of Evans J he asked them whether they wished to proceed or go away and prepare a proper affidavit, they put forward the same arguments that's in their last affidavit and they then decided no, we will not proceed, we'll go away and actually prepare an affidavit. All we got back was the same stuff which basically said the Court is wrong, we are right, and here we are again today, this is the third opportunity that they have had to prepare an affidavit, and in my view I am being unfairly - the matter is being biased against me. There's clear favouritism if they get three goes at an affidavit. They have had the same opportunity as I've had to go and get legal advice on any number of occasions, they've even admitted in the previous case that they've had legal advice, they continue down this path and I think we should proceed on the matter as it is, in which case I would object to all the affidavits and the matter should be dismissed. If we go on, I can't afford the time away from work to keep coming down here time after time while they try and make a case."
So far as the substance of that submission is concerned, the appellants' counsel did not challenge it. It may fairly be inferred that Mr Ridler had a valid complaint about the chances the appellants had to provide admissible evidence and satisfy the onus of proof which rested on them.
I have dealt with all of the appellants' submissions. For the reasons I have given, the appeal should be dismissed.
File No FCA 83/2000
THE QUEEN v RESOURCE MANAGEMENT AND PLANNING APPEAL
TRIBUNAL; EX PARTE R WALTER & P WISSLER
REASONS FOR JUDGMENT FULL COURT
SLICER J
23 November 2001
I agree, in general terms, with the analysis by Crawford J of the grounds of appeal as formulated and with his conclusions in all, but one area.
The appellants were involved in an ongoing dispute involving a Mr Ridler, the effective respondent. A brief outline of that disputation is set out in R v Resource Management and Planning Appeal Tribunal; ex parte Walter and Wissler [2001] TASSC 3. The dispute came before the Resource Management and Planning Appeal Tribunal which dismissed their application for certain remedies. It is difficult, on the basis of the material placed before this Court, to discern the basis of dismissal except that it followed a long history of argument about particulars, adjournments, frivolous and vexatious proceedings, costs and security for costs. In its decision of 23 September 1998, the Tribunal referred to an application for security of costs made by Mr Ridler and concluded that it had the power "to direct that the applicants provide evidence to demonstrate that they have a capacity to meet such a costs order", a conclusion which presumably related to a costs order after the event.
The Tribunal gave as its reasoning for the making of such an order that:
"The application that they have lodged has raised many issues that could require considerable preparation by way of response by the respondent. It is not unreasonable to require that the applicants satisfy the Tribunal that they could meet a potential order for costs before the respondents are required to embark on a potentially expensive defence to the application."
The Tribunal further ordered:
"11(ii)That the hearing of their application … be stayed pending the provision of such evidence …".
On 4 October 1998, the Tribunal heard evidence "as to the applicants capacity to meet an order for costs" and on 9 October it heard an application by Mr Ridler's counsel for a stay of proceedings on the basis that "his client was not in a position to respond to the summons as he did not have sufficient particulars of the claim." The appellants declined to provide such particulars on the ground that:
"… as the Tribunal had ultimately accepted the application following some amendments and issued the summons pursuant to Section 64, the Tribunal had therefore accepted that there was a sufficient basis for the application."
The material before this Court does not show what, if any, order was made on that day.
On 10 December, counsel for Mr Ridler repeated his complaint and affirmed that "Despite previous requests for particulars he maintained that he was unsure as to a number of significant matters". It would appear that there was merit in both his complaint and reasons. The appellants sought an adjournment which was opposed. In the alternative, counsel for Mr Ridler "asked that a condition of any adjournment granted be that the applicants be required to pay the costs of and incidental to the days proceedings".
The Tribunal retired, and having considered the issues, advised the parties that it would consider an adjournment that day "on the basis that the applicants met the costs occasioned by the adjournment."
It is impossible to discern from the reasons for the decision of the Tribunal what next occurred. It is certain that the Tribunal dismissed the application on 10 December. The reasons for the decision confuse rather than enlighten. The reasons state:
"The Tribunal retired to consider the applications and subsequently advised the parties that it would consider an adjournment of the hearing that day on the basis that the applicants met the costs occasioned by the adjournment. The Tribunal was satisfied that the particulars sought by the respondent were necessary in order for him to prepare a defence to the application. The Tribunal confirmed that the applicants had been advised on no less than three prior occasions that these particulars were required and had failed to supply them. Despite the applicants' protestations to the Tribunal, they were unable to indicate where such particulars were contained in their proofs of evidence. They sought an adjournment of their application to provide such particulars."
It is uncertain from that passage whether there was a further application for adjournment, whether the passage commencing "The Tribunal was satisfied" in par7 referred to pronouncements made before or after the retirement, whether a further enquiry as to capacity to pay was conducted or whether the appellants refused to supply the information.
The following passages in the reasons for decision, delivered on 18 January 1999, do not disclose the reasoning process, and simply state:
"8 In considering any order for costs the Tribunal must take into account the following matters as set out in Section 64(12) of the Land Use Planning and Approvals Act 1993:
'(a) The result of the appeal; and
(b) Whether a party has raised frivolous or vexatious issues at the hearing; and
(c)Whether any party has unnecessarily or unreasonably prolonged the hearing or increased the costs of it; and
(d)The capacity of the parties to meet an order for costs.'
9In reference to the above:
(a)No submissions were made in relation to this issue as the costs application was in relation to the application for adjournment of the proceedings which had not at that stage concluded.
(b)It has been alleged by both parties that frivolous or vexatious issues have been raised but the Tribunal is not in a position to determine this issue at this stage of the proceedings.
(c)This hearing was not able to proceed due to the applicants' failure to provide particulars of their claim. An adjournment would obviously prolong the hearing and increase the overall costs.
(d)The applicants failed to provide the Tribunal with any information as to their capacity to meet an order for costs. They in fact opposed an adjournment on the basis that they meet the costs thereby occasioned. The adjournment being opposed on this basis and the Tribunal having agreed that the respondent is not in a position to respond to the application for lack of particulars, the application dated 18th May 1998 was accordingly dismissed."
It is clear that four matters were relevant to the dismissal:
(1) It was not based on a finding that the application was frivolous or vexatious.
(2)The failure or inability of the present appellants to provide particulars was a significant matter.
(3) A further adjournment would have prolonged the hearing and increased costs.
(4)The failure of the appellants to provide information as to capacity to meet any order for costs and opposition to an adjournment on the basis that they pay costs.
A substantive argument can be discerned from the above, namely, that the order made on 23 September 1998 that the appellants provide evidence of capacity was not permitted by statute. The order was either replicated on 10 December, or the failure to so provide the information formed a basis for dismissal. A contention could be that such an enquiry could only be made after the hearing and was relevant only to an award of costs to a successful party.
The appellants sought redress in accordance with the Rules of the Supreme Court, O72, seeking to quash the order of 10 December. It is uncertain whether or not they filed an affidavit in support at the time their application was filed with the Court.
That the judge hearing the application believed that there was some merit in the appellants' case is apparent from his notes, presumably made between 7 June and 21 July 1999. The "record of proceedings" document for 7 June shows a formal hearing only. The hearing time for 21 June is shown as having been some two hours. Some of the notes would appear to have been made on that day. On 21 June, the original judge ordered that the appellants:
"… make and file a further affidavit in support of their application with all relevant annexures, setting out the chronology of all events and the basis upon which they challenge the Tribunal's decision, …"
The appellants filed an affidavit sworn on 29 June 1999. For reasons which will become apparent, this Court is unable to consider their contents.
The first set of notes might well have been made during the course of discussion with the appellants on 21 June. The record of proceedings document for that date includes the notation "Wright J is to view the above affidavit in the form in which it is received, prior to filing."
An order was made on 28 July 1999. It is possible that the second set of notes in his Honour's handwriting were read by the Court on that day as constituting the reasons for the making of the order. It matters little since they are simply set out to show that his Honour had been able to decipher the appellants' confusing material and arguments and found some merit in them. Those notes state:
"The applicants seek a general order directed to the Resource Management & Planning Appeals Tribunal to show cause why the Tribunals decision made on 10 December 1998 should not be quashed.
On that day the Tribunal made an order dismissing the applicants originating application pursuant to the LUPA Act made on 18 May 1998. Pursuant to that application the Tribunal had issued a summons to Ridler on 13 July 1998 in the following terms. Thereafter Ridler was served and was represented at all subsequent proceedings relating to the applicants application by Mr D Armstrong. Mr Armstrong applied inter alia for particulars of the nature & circumstances of acts alleged to constitute the contraventions alleged & details of the Act or Planning Scheme alleged to have been contravened. He also sought orders adjourning proceedings until particulars were supplied. The applicants claim to have supplied particulars but this is contradicted in the Tribunals reasons for dismissing their application of 18 May 1998 which it published on 18.1.99.
The Tribunal took the view that the applicants failure to provide particulars made it impossible for the hearing to proceed & it also superseded the view that to grant an adjournment as requested by the applicants would 'prolong the hearing & increase the overall cost'. However the Tribunal also referred to an order which it had previously made for the applicants to provide the Tribunal with information as to their capacity to meet an order for costs and viewed in the context of its reasons it is difficult to escape the conclusion that at least in part the Tribunal was moved to make the orders which he did on 10 Dec 98, on the basis of the applicants disobedience to this earlier order.
In my opinion it is plainly arguable that in making such an order the Tribunal had exceeded its jurisdiction & the applicants were justified in declining to comply with that order. The Tribunals written reasons do not however place direct reliance upon this non observance of the financial capacity disclosure order as a reason for dismissing the application. The dismissal appears to be based upon the applicants declining to pay the costs occasioned by any adjournment which the Tribunal may grant.
The Tribunal dismissed the originating application. It is arguable that the Tribunal's discretionary power in relation to costs under LUPA Act s64(12) exists only in respect of the costs of an application which has been heard & determined on its merits, having regard to those factors which are mentioned in s64(12)(a) - (d) inclusive.
Para a, b & c in particular appear to be predicated on the assumption that any order for costs will only be made after the proceedings and the hearing(s) in respect thereof.
The only power which the Tribunal appears to have to make an order disposing of a s64 application without a hearing on the merits is that provided by s64(13) to dismiss a frivolous or vexatious application.
The Tribunal in the present case specifically declined to make a finding that the application was either frivolous or vexatious.
As Crawford J pointed out in Dorset Council v DP & LJ Krushka P/L 69/1999 @ 8 'The Tribunal is not a court.' Its powers & authorities are to be found in the LUPA Act 1993 & the RMPAT Act 1993. Sections 13 - 24 of RMPAT Act govern the powers of the Tribunal in relation to an appeal. Pursuant to s64(11) of LUPA Act an application under that section is deemed to be an appeal. The provisions in the RMPAT Act do not deal with the situation where a party to an appeal fails to comply with an interlocutory or procedural order made by the Tribunal.
S22(1) is in broad & general terms but even so in my opinion does not empower the Tribunal to make an order dismissing an appeal without proper determination after a merits hearing.
It is to be noted that the Tribunal in the present case did not make an order adjourning & making relisting dependent upon payment of costs. It dismissed the application. This is a draconian response which would not normally be followed even by a judge exercising his plenary powers.
The applicants refusal to agree to payment of the respondents application for costs did not preclude the Tribunal from making an order adjourning the proceedings & also (arguably) ordering the applicants to pay the costs or (more probably) indicating that it would take account of the applicant's application to adjourn & the costs occasioned thereby in making its order as to costs at the conclusion of the hearing in accordance with s64."
On 28 July, Wright J granted the application in the following terms "UPON READING the affidavit of R Walter and P Wissler sworn the 29th day of June 1999 …ORDERED: … THAT A GENERAL ORDER … to show cause why a writ of certiorari or further or other relief should not be granted … and quash: …" the orders made on 10 December 1998 and March 1999 (the latter relating to a consequential costs order).
The grounds on which the general order issued were:
"(a)The Tribunal was without jurisdiction to make an order dismissing the application without conducting a hearing on the merits;
(b)The Tribunal exceeded its jurisdiction under the Land Use Planning and Approvals Act 1993, s64 in making an order dismissing the application;
(c)The Tribunal had no jurisdiction to order as it did on 23 September 1998 that the prosecutors disclose their financial capacity to meet an order for costs before the hearing of the application and erroneously took into account the prosecutors' failure to comply with that order in dismissing their application;
(d)The Tribunal acted in breach of the rules of natural justice in depriving the prosecutors of the right to a hearing of their application on its merits by dismissing their application, rather than:
(i)adjourning it and either ordering them to pay the costs of the adjournment or indicating that it would take the costs of the adjournment into account when making a final order as to costs under the Land Use Planning and Approvals Act 1993, s64(12), after the conclusion of proceedings in respect of the application; or
(ii)adjourning it and staying proceedings unless and until the prosecutor's met any order for costs that the Tribunal had power to make.
(e)The Tribunal acted with procedural unfairness to the prosecutors by failing to take account of their compliance with the Tribunal's orders to provide particulars and by failing to take account of Mr G Ridler's failure to comply with the Tribunal's orders to provide proofs of evidence which he intended to call on the hearing;
(f)The Tribunal lacked jurisdiction to make a costs order against the prosecutors as it did in March 1999 as the order dismissing the application upon which it depended had itself been made without jurisdiction."
Ground (c) clearly identified the order made on 23 September, and its interrelationship with the order dismissing the application.
There followed a series of interlocutory hearings during which a different judge attempted unsuccessfully to have the material necessary for the hearing put in order.
At all times thus far the appellants appeared in person. It would appear that Mr Ridler on all or most occasions appeared with counsel.
The matter came on for hearing before Underwood J on 17 April 2000. On this occasion, the appellants were represented by counsel while Mr Ridler appeared in person. Counsel commenced by attempting to read into evidence the affidavits sworn by the appellants on 29 June 1999, 15 September 1999 and 28 February 2000. Counsel had been briefed just before the hearing advising his Honour that:
"Those are the three affidavits, sir, that I found in the Court file and I hasten to add I picked this up a week ago and I am reliant upon the information which the prosecutors had previously provided to the Court."
His Honour commenced to read an affidavit and having quoted three passages, stated in the following exchange with counsel:
"It's just embarrassing, that affidavit, and one could say really that for most of the other affidavits which one looks like a diary and - -
MR HAMILTON: That's correct sir.
HIS HONOUR: And I couldn't make head nor tail of them, I must confess.
MR HAMILTON: My understanding, sir, of that affidavit that appears in diary form is an affidavit that Wright, J asked for in that particular form and that's why it was presented in that form.
HIS HONOUR: I, of course, wasn't here then but I am surprised to hear that his Honour asked for something to be done, judges don't usually dictate what evidence they would require and I am sure his Honour wouldn't have expected it in that form. It just doesn't comply with the rules of Court, does it? You may want to argue to the contrary.
MR HAMILTON: I can't assist, sir. It's a sworn document, that's all I can say. Sorry, it is a statutory declaration also, it is not an affidavit."
Wright J had indeed done what the learned primary judge found "surprising" and had done so because he was attempting to assist two unrepresented persons, unskilled in the nuances of O41, r1, present an argument as to the validity of an order made by a tribunal of the State. Counsel had correctly explained to his Honour why the affidavit had been prepared in the form in which it did.
It is not necessary to state the exchanges which are recorded in the transcript between line 140 - 325, except to summarise that counsel was not afforded an opportunity to explain their contents. It is obvious that the diary comprised a mixture of direct and inadmissible evidence, convoluted argument, and as the following extract shows:
"May. Request from Registrar (Helen Anderson) for more information re part for LVPPA (sic).
I don't know what that means. On the face of it, it doesn't mean anything. There's no verb in the sentence. …"
inadequate grammar.
Eventually counsel suggested that he attempt to edit the affidavits and excise the "non factual material". In the course of that discussion, counsel pointed to similar defects in the affidavit of Mr Ridler. Counsel stated:
"MR HAMILTON: Yes. I suspect he's going to say it is professionally prepared and therefore it's okay but that may not necessarily be so. The issue is still the fairness of the matter and the need to get it over with. The fact is that my clients have, to the best of their ability, not having been legally represented throughout any of this, tried to comply with the orders of the Court to the greatest extent they could and as they understood them. It is often very difficult for litigants on their own account to come before the Court and comply with the rules and that certainly has been an issue through this entire affair."
After an adjournment, the learned primary judge referred to the interlocutory or pre-trial proceedings, and in relation to one of the preliminary rulings, said:
"That's what his Honour said last time. Now in the light of that it seems to me that the Court has an inherent power to strike out affidavit materials that are prolix or embarrassing or of course scandalous - I'm not suggesting that these are scandalous - but the Court has an inherent power to strike out affidavits that are prolix. And in support of that proposition I refer to the following cases Rossage v Rossage & Ors (1960) Vol 1 AER, 600. That case was followed in a case called H v H & C (1989) 3 AER, p740. There's older authority in the Court of Chancery in a case called Walker v Poole (1882) Vol 21 Ch DR (sic), p835 and Hill v Hart-Davis (1884) Vol 26 Ch D p470. It therefore seems to me that the issue before me at the present time is why I should not order removed from the file the statutory declaration of the prosecutors declared on the 29th of June, 1999 as being prolix, that's the first step. And having said all that, now, so that the parties can understand the position, I invite you, Mr Hamilton, to make submissions about it all."
Counsel made further submissions and, returning to the affidavit dated 29 June, attempted to edit the document. At the end of that attempt, his Honour stated:
"… Well I needn't hear you about this, Mr Ridler. With respect to the prosecutor's statutory declaration declared on the 29th of June, 1999 I am clearly of the view it is prolix and riddled with inadmissible material. The inadmissible material is opinion evidence, secondary evidence of the contents of documents, hearsay evidence, irrelevant evidence and argument and the editing process just gone through by Mr Hamilton still left large quantities of inadmissible material in the affidavit. It is difficult to follow the declaration, I should say, it's difficult to follow the declaration as the majority of the sentences have no verbs. It is impossible to separate the admissible evidence from the inadmissible evidence in any meaningful way. None of these are irregularities within the meaning of order 14, rule 17 and in the exercise of the inherent power conferred upon me I will order that the statutory declaration dated the 29th of June, 1999 be removed from the file."
A similar process was conducted in relation to the affidavit sworn 22 December. The entirety of this exchange was:
"HIS HONOUR: Sworn the 22nd of December, 1998.
MR HAMILTON: We wish to keep in, sir --
HIS HONOUR: No, forgive me, I don't wish to do anything except determine this application.
MR HAMILTON:: Sorry, we submit, sir. We submit that on page 2 that part of the first paragraph that begins with 1 September 30 date for hearing and to the bottom of that paragraph should remain in and the rest taken out.
HIS HONOUR: So in other words it reads as an application, I suppose that's what you're putting, isn't it?
MR HAMILTON: No, sir, I'm only saying those are the only facts in it and that's where the difficulty lies."
His Honour then ordered that the affidavit be struck out. Counsel made no submissions on the third affidavit "on the basis of what" the learned primary judge had previously ruled, an observation to which his Honour replied:
"Yes I think that's quite right, Mr Hamilton. The same order will be made with respect to that affidavit."
The record of proceedings document records that the following orders were made:
"That the statutory declaration dated 29/7/99 be removed from the file.
That the affidavit sworn 22/12/98 be removed from the file.
That the affidavit sworn 15/9/99 be removed from the file.
That the affidavit sworn 28/2/00 be removed from the file.
That the order nisi dated 28/7/99 be discharged.
That the prosecutors pay the respondent's taxed costs of the order nisi and all related proceedings in this court."
A notation on the document states "Doc's given to Robert M Hamilton 18/4/00". However on another court document headed "JUDGES PAPERS" there appears another notation "Pages 3 - 6 removed and destroyed per AG O'N … 16/6 See ROP 17/4/00".
The pages can be identified as an "Affidavit of Applicants sworn 22/12/98".
This Court is unable to examine the documents removed from the Court file as a consequence of an order by the learned primary judge. This Court has not been able to examine copies of those documents, one of which has been destroyed.
I would uphold the appeal on the basis that this Court is unable to examine the contents of the original material or examine the correctness of the ruling which excluded all of the affidavit material. It cannot consider whether or not some of the material might have been admissible and, if so, whether it afforded sufficient basis for resolving the issue of whether the Tribunal had jurisdiction to make the "costs enquiry" order and whether it could use non-compliance as a basis for dismissing the application. This Court is permitted to uphold the appeal on this basis by virtue of the Supreme Court Civil Procedure Act 1932, s47.
There is a second basis for upholding the appeal. The grounds of appeal, badly expressed, include a claim of error on the basis that:
"The learned trial judge, … without conducting a hearing … allowed the Tribunal Orders to remain intact when they were made outside the Tribunal's jurisdiction (We believe there was no jurisdiction to make the Order we disclose our finances - J207/98)."
The contention is correct. Even accepting that the learned primary judge was correct in excluding all of the material comprised in the affidavits (a conclusion with which I respectfully do not agree), there remained before him the originating application, the order nisi and (assuming that copies were annexed to one of the affidavits) the decisions of the Tribunal dated 23 September 1998, and 18 January 1999, the latter being the reason for the making of the order on 10 December 1998. The issue identified by Wright J and stated in his order, could have been determined on the basis of the remaining material. It was and remains possible to determine whether or not the Tribunal has power to examine the means of a party before it has determined an application, or whether it can only make such an enquiry when considering a consequential costs order.
In my opinion, the learned primary judge was required to afford the appellants a hearing on the merits of the question. They were denied that opportunity.
I would uphold the appeal.
File No FCA 83/2000
THE QUEEN v RESOURCE MANAGEMENT AND PLANNING APPEAL
TRIBUNAL; EX PARTE R WALTER & P WISSLER
REASONS FOR JUDGMENT FULL COURT
EVANS J
23 November 2001
The appellants appeal against an order dismissing a general order they had obtained against the Resource Management and Planning Appeal Tribunal ("the Tribunal"), calling on it to show cause why a Writ of Certiorari should not issue against it. The dismissal order was made as the appellants failed to put before the Court any admissible evidence upon which to base the final order they sought.
Prior to the hearing which culminated in the dismissal order, the inadequacy of affidavits the appellants proposed putting before the Court had been the subject of adverse comment in the course of several hearings. On three occasions the appellants were ordered to file an appropriate affidavit in support of their application. The first of these orders was made by Wright J on 21 June 1999. On that day, his Honour was handed folders from the Tribunal and the appellants containing relevant documents. It seems that his Honour's consideration of the contents of these folders influenced his decision to make an order to show cause against the Tribunal. The folders were returned to those who had provided them and none of the documents contained in the folders were annexed to affidavits filed by the appellants. The last order that the appellants file an appropriate affidavit in support of their application was made by me on 10 February 2000. On that day, I explained to the appellants that the three documents described as affidavits which they had filed were inadequate for reasons which included the failure to annexe any relevant documents, such as their application to the Tribunal and the decision of the Tribunal on that application to which they objected. I explained that if they proceeded with their application on the basis of the affidavits they had filed, it was likely that it would be dismissed for the lack of any evidence to support it. Over the objection of Mr Ridler, an affected person who had been served with the order to show cause, I adjourned the hearing to give the appellants an opportunity to file a further affidavit. Thereafter, the appellants filed an affidavit sworn on 28 February 2000. That affidavit did not advance their cause. In the course of the hearing, which is the subject of this appeal, the appellants' counsel agreed with the learned primary judge that the material contained in that further affidavit was not probative of the grounds for the order to show cause.
The learned primary judge found that the appellants' affidavits were prolix and riddled with inadmissible material, such as argument and opinion evidence, secondary evidence of the contents of documents, hearsay evidence and irrelevant evidence. His Honour rejected the affidavits and ordered that they be removed from the file. That order accords with the Rules of the Supreme Court 1965 ("the Rules"), O77, r27. Whilst that aspect of his Honour's order has not caused me any difficulty in this case, in my view, a preferable order would have been that the affidavits be placed in a sealed envelope which was not to be opened except on the order of the Court. Such an order was made in Shaw v Harris [No 1] (1992) 3 Tas R 153. Difficulties may flow from an order that affidavits be removed from the Court file if it later becomes necessary to refer to the affidavits on the hearing of an appeal. When an order for removal is made, its execution should be delayed until after the outcome of any appeal. The practice in England has been to keep the affidavits for six months after removing them from the file; The Supreme Court Practice 1985 Vol 1 Pt 1 Sweet & Maxwell Stevens & Sons, London, 41/6/1.
As I have said, the removal of the affidavits has not caused me any difficulty in this case. No ground of appeal challenges the learned trial judge's rejection of the affidavits. In the course of their oral submissions, the appellants said that their argument was not that the learned primary judge erred in ruling that their affidavits were inadmissible. The appellants did not pursue a written submission to the contrary effect which they had made. Had the appellants wished to pursue that issue, copies of the affidavits could have been provided to the Court. An order for the removal of the affidavits does not fetter the use of copies; Jones v Trinder, Capron & Co [1918] 2 Ch 7.
Following the learned primary judge's rejection of the affidavits, counsel for the appellants applied for an adjournment in order to have time to "provide proper affidavit or proper affidavit material to the Court". Mr Ridler, who appeared in person, opposed this application on the ground that it was the third or fourth occasion on which the appellants had to come before the Court without any proper evidence. He submitted it would be unfair to give them a further adjournment. Not surprisingly, the learned trial judge rejected the adjournment application. In the absence of any admissible evidence to support the application for a final order, the learned primary judge was bound to dismiss the order to show cause and duly did so. No ground of appeal challenges the learned trial judge's rejection of the application for an adjournment to allow the appellants further time in which to file a satisfactory affidavit.
I have had the opportunity of reading Crawford J's reasons for judgment. I adopt his distillation of the grounds of appeal and the appellants' written submissions and agree with his reasons for rejecting the same. I only wish to comment on one matter. The appellants submitted that the order to show cause was self-sufficient in the sense that upon it issuing, it passed the onus of proof to the Tribunal with the consequence that when the Tribunal did not appear to oppose the application for a final order, that order should have been made by default. A submission to the same effect was advanced by the appellants' counsel at the outset of the hearing before the learned primary judge although counsel, quite properly in my view, acknowledged that he did not expect to get very far with it. It seems to me that the appellants' belief that the order to show cause relieved them of the onus of establishing their case explains their disregard for the need to file an appropriate affidavit. That belief was a misconception. A fundamental requirement of any judicial system is that the person who desires the Court to take action must prove the case to the Court's satisfaction; Dickinson v Minister of Pensions [1953] 1 QB 228 at 232 and Cross on Evidence, 6th Aust ed, Butterworths, 2000, 7060 - 7075. That fundamental requirement is reflected in the Rules which govern applications for prerogative writs at the time of the appellants' proceedings. Order 72, r1(2), requires that an application for a Writ of Certiorari be, in the first instance, for a general order to show cause why the relief sought should not be granted. Order 72, r1(5)(b) requires that the application be accompanied by an affidavit which verifies the facts relied upon. Upon a general order to show cause being made, it, together with any affidavits upon which the applicant for the order, the prosecutor, intends to rely shall be served upon those persons who the Court specifies are affected by the relief sought; O72, rr3(1) and 5(2). One reason for requiring the prosecutor to serve an affected person with the affidavits upon which the prosecutor proposes relying is that this enables the affected person to decide whether he or she wants to be heard on the return of the order. If the affected person does not dispute the facts which are to be relied upon by the prosecutor, he or she may chose to file a notice of submission which operates as a submission by that person to whatever order the Court deems it appropriate to make on the return of the general order; O71, r3(5) and (8). A person who files a notice of submission does so in the knowledge that in pursuing a final order the prosecutor is confined to the material adduced, that is, the affidavits which the prosecutor has served on the affected person; O72, r4(1).
It can be seen from the provisions I have referred to, that the Rules lay down a procedure which is consistent with the fundamental requirement that a person who desires the Court to take action, in this case, the prosecutor, must prove the case to the Court's satisfaction. The appellants' contention that upon a general order to show cause being made the onus passes to persons who might be affected by the relief sought to establish that a final order should not be made, is unsupportable. It is not consistent with the fundamental requirement to which I have referred, or the Rules. The decision of the Full Court in R v Minister for Sea Fisheries; ex parte The National Australia Bank Limited [1991] Tas R 70, is consistent with the view I have expressed. In that case, the appellant had obtained an order nisi, calling upon the Minister for Sea Fisheries to show cause why Writs of Certeriori and Mandamus should not issue. Upon the hearing of an appeal against an order discharging that order nisi, the Full Court held that the appellant prosecutor carried the burden of demonstrating that the decision under challenge was vitiated by error. It was not suggested that as an order nisi had been made, the respondent bore the onus of disproving error.
I would dismiss the appeal.
0
1
0