R v Resource Management and Planning Appeal Tribunal; ex parte Walter and Wissler

[2001] TASSC 3

[2001] TASSC 3

CITATION:R v Resource Management and Planning Appeal Tribunal; ex parte Walter and Wissler [2001] TASSC 3

PARTIES:  R
  v

RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

WALTER and WISSLER; Ex parte

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 83/2000
DELIVERED ON:  7 February 2001
DELIVERED AT:  Hobart
HEARING DATES:  16, 17 October 2000
JUDGMENT OF:  Slicer J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Applicants:  P Walter, P Wissler in person
             Respondent:  G Ridler in person

Judgment Number:  [2001] TASSC 3
Number of Paragraphs:  14

Serial No 3/2001
File No FCA 83/2000

THE QUEEN v
RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

REASONS FOR JUDGMENT  SLICER J

7 February 2001

1. The applicants are owners of land situate at Saltwater River and have been involved in disputation with an adjoining landowner, Garry Ridler, about rights of access, permitted use of land and boundary fences.  For much of the time of disputation they have represented themselves with the result that they have become lost in the thickets of the law; so deep that it is difficult to discern either the history of the proceedings or the basis and form of the remedies which they seek.  Their use of language, the documentation provided and what might be called in modern parlance "stream of consciousness": presentation of assertions, thoughts and evidentiary material, complicated the proceedings.  Nevertheless, it is incumbent on the Court to attempt to ascertain whether they have a legitimate grievance which is amenable to remedy or whether their attempts to obtain redress are futile and a misuse of the court process.  A commencing point is that thus far there has been no hearing on the merits of their grievance, that costs have been awarded against them on procedural issues and that the absence of representation has meant that the issues they seek to raise have not been properly defined.

1. There has been an ongoing property dispute involving the applicants and Ridler concerning the use of land, the erection of fences and the like.  In 1998, the applicants, believing that the Resource Management and Planning Appeal Tribunal had power to resolve the disputation, made an application under the Land Use Planning and Approvals Act 1993 ("the Act"), s64, requiring Mr Ridler to show cause why orders should not be made to "refrain" (sic) his use of certain lands for agriculture without planning approval. The return date for the summons was 6 August 1998 and at the hearing on that date Mr Ridler, who also appeared in person, raised concern about the absence of particulars and sought that the application be dismissed on the basis that it was "vexatious and frivolous". The summons issued by the Tribunal stated:

"You are hereby summoned to appear at the above time and date before the Appeal Tribunal, to show cause why orders should not be made that you refrain from use of the land shown as 'reserved road 1 chain wide' on the Certificate of Title Volume 2508 Folio 67, for agriculture, without planning approval, as sought in the attached application dated 18^th May 1998, as varied by the attached letters dated 1^st June 1998 and 8^th July 1998 … "

1. On 23 September 1998, the Tribunal ordered:

"(i)That the applicants provide evidence to the Tribunal in demonstration of their capacity to meet a costs order, and

(ii)That the hearing of their application under Section 64 of the Land Use Planning and Approvals Act 1993 be stayed pending the provision of such evidence. The Tribunal will convene at 10.00am on the 5^th October 1998 for the purpose of taking evidence from the applicants as ordered above.  The hearing of the application on the 30^th of September 1998 is accordingly vacated."

and further ordered that proceedings be stayed pending the provision of such evidence. It purported to do so pursuant to its obligations under the Act, s28(2).

1. At the hearings on 5 and 9 October 1998, the Tribunal heard applications made by counsel for Mr Ridler for a stay of proceedings for the provision of further particulars and heard evidence in relation to the costs order.

1. At a subsequent hearing on 10 December 1998, counsel for Mr Ridler submitted that he was not in a position to respond to the application as he was unsure of the basis of the application made by the applicants.  The Tribunal returned, adjourned and, on its return, 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." 

1. On the same day, the Tribunal determined:

"9        …

(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 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 18^th May 1998 was accordingly dismissed.

10The Tribunal will entertain any application for an order for costs in this appeal, if made to the Tribunal in writing with supporting submissions within fourteen days from the date hereof.  If requested the Tribunal will reconvene to hear any evidence in respect of any matter bearing on an order for costs.  In the absence of any such application for an order for costs the order of the Tribunal is that each party bear its own costs."

1. The Tribunal published its reasons for decision on 18 January 1999.  On 15 March 1999, the Tribunal made a costs order against the applicants.

1. On 22 December 1998, the applicants sought judicial review, and, on 28 July 1999, this Court made a general order to show cause why a writ of certiorari should not be granted to remove into the Supreme Court the original orders and quash

"(a)the decision of the Tribunal made on 10 December 1998 whereby the prosecutors' application dated 18 May 1998 under the Land Use Planning and Approvals Act 1993, s63 was dismissed; and

(b)the order of the Tribunal made in March 1999 that the prosecutors pay two thirds of Mr G Ridler's costs of the application."

on the grounds that:

"(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 [sic] 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."

1. There followed a number of directions hearings concerned with the filing of affidavit material and the sufficiency or otherwise of the contents of such affidavits.  On 13 April 2000, Mr Hamilton, a solicitor instructed by the applicants, filed a notice placing him on the record as their solicitor.  The matter came on for hearing on 17 April shortly after Mr Hamilton had been instructed in the proceedings.  The learned primary judge was faced with affidavits prepared by litigants in person and which contained a mixture of assertions, facts and argument.  The learned primary judge examined the affidavits and considered the application of the Rules of the Supreme Court, O41.  He concluded that the material was deficient and did not comply with the Rules of Court.  He did not purport to distinguish between portions of the affidavits which might have contained admissible material and those which contained argument or assertion.  His Honour made the following orders:

"1        The statutory declaration dated 29 July 1999 be removed from the file;

2         The affidavit sworn on 22 December 1998 be removed from the file.

3         The affidavit sworn on 15 September 1999 be removed from the file.

4         The affidavit sworn on 28 February 2000 be removed from the file.

5         The Order Nisi dated 28 July 1999 be discharged.

6The prosecutor pay the respondent's taxed costs of the Order Nisi and all related proceedings in this Court."

Regrettably, the effect of the order was to remove from the file much of the impugned material and it has been impossible on the hearing of this application to discern whether some of the excluded material might have properly been placed before the Court.

1. On 6 October 2000, the applicants filed a notice of appeal against the orders made on 17 April on the grounds that:

"2.1     The learned trial judge,

discharged the Order Nisi without conducting a hearing and without the Respondent (RMPAT) appearing.

allowed the Tribunal Orders to remain intact when they were made outside the Tribunal's jurisidction (we believe there was no jurisdiction to make the Order we disclose our finances - J207/98)

allowed the Parties to be misrepresented as the Public Prosecutors filed documents as Solicitors for RMPAT in the case of The Queen v RMPAT, and a private party G Ridler was allowed to "show cause" for RMPAT in an appeal - not a Writ of Certiorari.

awarded Costs for G Ridler's lawyer (D Armstrong) as though Ridler were the Respondent."

1. On the same day, they sought an extension of time for the lodging of an appeal on the grounds that:

"1the time for appeal be abridged as we did not know until 19-9-00 that the Court Order (17-4-00) was supposed to have been obtained by a hearing when in fact it was not.

Because Mr Ridler has initiated 3 other legal actions it is necessary to clearly establish the legality of the Tribunal Orders, especially the security of costs order.

Because of the nature of our case, the denial of access, we have only walking access to our home (2kms).  This has resulted in great stress & inconvenience."

1. The affidavit in support of the application states:

"In the Supreme Court  M335/98

Hobart  FCA 83/00

The Queen

v

Resource Management Appeal Tribunal

Ex parte R Walter & P Wissler

The AFFIDAVIT of R WALTER & P WISSLER

We the above make oath and say as follows:-

We did not know until 19^th September, when we checked personally in the Supreme Court file at the Registry, that the Order nisi was discharged and that it was supposed to have been obtained with a hearing.

We had received no other information.  Our lawyer (R HAMILTON) informed us there was no hearing.  Prior to that we have not left our property for 3 months due to extreme stress.

We have no access and our vehicles have been seized as a result of this action.

P Wissler

R P Walter

Sworn by the

above named

deponents

at Hobart  before me

6^th October 2000

FILED BY:

R WALTER & P WISSLER

DEER POINT, SALTWATER RIVER"

1. I accept that the applicants were confused as to the effect of the order made in April and the reasons why there had been no hearing on the merits.  It is possible to discern an arguable basis for appeal which is not dependent on affidavit material.  The reasons for decision of the Tribunal themselves show a possible basis, namely, the power or absence of power to make enquiry as to whether a party has means sufficient to meet a costs order.

1. Leave is granted so as to permit the filing of a notice of appeal as of 6 October 2000.