Saunders & Ward Pty Ltd v Resource Management and Planning Appeal Tribunal - [2016] TASFC 3

[2016] TASFC 3

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Saunders & Ward Pty Ltd v Resource Management

and Planning Appeal Tribunal [2016] TASFC 3

PARTIES:  SAUNDERS & WARD PTY LTD
  v
  RESOURCE MANAGEMENT AND PLANNING

APPEAL TRIBUNAL

FILE NO: 968/2015
JUDGMENT

APPEALED FROM: Saunders & Ward Pty Ltd v Resource Management

and Planning Appeal Tribunal [2015] TASSC 28

DELIVERED ON:  5 August 2016
DELIVERED AT:  Hobart
HEARING DATE:  5 October 2015
JUDGMENT OF:  Tennent, Estcourt and Pearce JJ

CATCHWORDS:

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal and its predecessors – Generally – What amounts to an error of law – Assertion that reasoning adopted by Tribunal irrational and/or illogical and hence an error of law – Consideration of authorities post St Helen's Area Land Care and Coast Group Inc v Break O'Day Council in relation to issue.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s 25.
St Helen's Area Land Care and Coast Group Inc v Break O'Day Council [2007] TASSC 15, 16 Tas R 169; Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20/2002 (2003) 77 ALJR 1165; Haritos v Commissioner of Taxation [2015] FCAFC 92 at [218]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, considered.
Aust Dig Environment and Planning [595]

Procedure – Costs – Departing from general rule – Generally – Effect of Calderbank offer on exercise of discretion – Letter not expressly or impliedly written in reliance upon the relevant principles – No error as to the legal status of the letter – No misconception as to the facts that were relevant for the purpose of the application of the relevant principles such as to amount to an error of law.

Calderbank v Calderbank [1976] Fam 93, considered.

Aust Dig Procedure [576]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine SC
             Respondent:  A Spence
Solicitors:
             Appellant:  Sean McElwaine + Associates
             Respondent:  Page Seager

Judgment Number: [2016] TASFC 3
Number of paragraphs: 46

Serial No 3/2016
File No 968/2015

SAUNDERS & WARD PTY LTD v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL

REASONS FOR JUDGMENT FULL COURT

TENNENT J
ESTCOURT J
PEARCE J
5 August 2016

Order of the Court

Appeal dismissed.

Serial No 3/2016
File No 968/2015

SAUNDERS & WARD PTY LTD v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL

REASONS FOR JUDGMENT FULL COURT

TENNENT J
5 August 2016

I have had the benefit of reading in draft form the reasons for judgment of Estcourt J. In substance, I agree with those reasons, and I would also dismiss the appeal. I wish however to add some comments about the role of St Helen's Area Land and Coast Care Group Inc v Break O'Day Council [2007] TASSC 15, 16 Tas R 169 in this matter.
In that case Blow J (as he then was), in dealing with the nature of an appeal pursuant to the Resource Management Planning and Appeal Tribunal Act 1993, s 25, reviewed a number of authorities and concluded at [54] that:
"… an assertion that the Tribunal's impugned reasoning was illogical or irrational does not raise a question of law within the scope of s25(1)."
The decisions of Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 and Haritos v Commissioner of Taxation (2015) 332 ALR 254[1], to which counsel for the appellant in this appeal referred, have of course been decided since. Those decisions clearly suggest that there has been a shift in the approach to how assertions of irrationality and/or illogicality may be characterised, depending on the facts of the case being dealt with.
[1] In the course of argument on this appeal, counsel for the appellant advised that an application for special leave had been filed with the High Court in respect of the Haritos decision and that it was tentatively listed for hearing on 11 December 2015. The application was dismissed with costs on that day.
Counsel for the appellant adopted with alacrity, during the course of the hearing of this appeal, the proposition put to him from the bench that it was not the case that the St Helen's case had been wrongly decided. It was that it had been overtaken by more recent pronouncements of the High Court.
Blow CJ, in the present case, said at [31]:
"If, as asserted by the appellant, the learned Chairperson made a mistake as to the line of reasoning that he and his colleagues had adopted when they determined the appeal, that was a mistake of fact, not an error of law."
That conclusion was directed at a complaint that the Chairman of the Tribunal, when he delivered his costs decision, misinterpreted (my emphasis) the reasoning of the Tribunal in its initial decision. His Honour did not refer to the St Helen's case in his reasoning. Nor did he deal with the concept of irrationality and/or illogicality which underpinned much of counsel for the appellant's submissions on this appeal. I also note that none of the grounds of appeal refer to the concept of irrationality and/or illogicality, or suggest that his Honour wrongly concluded that, had the decision of the Chairman as to costs been an irrational and/or illogical one, that did not amount to an error of law.
File No 968/2015

SAUNDERS & WARD PTY LTD v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
5 August 2016

There are two central issues in this appeal brought from the decision of Blow CJ of 30 June 2015 in Saunders & Ward Pty Ltd v Resource Management and Planning Appeal Tribunal [2015] TASSC 28. I will deal with each in turn.
The first concerns the question of whether the Chairman of the Resource Management and Planning Appeal Tribunal (the Chairman and the Tribunal respectively) erred in law if the Chairman "materially misunderstood or mischaracterised" the decision of the Tribunal in an appeal when he later came to exercise his individual discretion to make a costs order in that appeal.
Section 25(1) of the Resource Management and Planning Appeal Tribunal Act 1993 (the RMPAT Act) only permits a party to an appeal before the Tribunal to appeal to the Supreme Court on "a question of law". If the Chairman did not err in law in the way asserted by the appellant then the purported appeal to this Court is incompetent.
The grounds of the appeal as to this first issue are as follows:
"The grounds of the appeal are that the learned Chief Justice erred in law in that:
(a) He wrongly concluded that a misinterpretation or misunderstanding by the Chairman of the first respondent about the effect of the decision of the first respondent published on 26 March 2014 (the prior decision) was a mistake of fact, not law;
(b) He failed to determine that an error by the Chairman of the first respondent in his interpretation of the effect of the prior decision, caused the Chairman to misconceive the question or questions of fact which he was required to determine in the exercise of his discretion pursuant to section 28 of the Resource Management & Planning Appeal Tribunal Act 1993;
(c) He failed to determine that a misunderstanding by the Chairman of the first respondent of the reasons and effect of the prior decision, was an error of law in that such misunderstanding caused the Chairman to misdirect himself as to the factual enquiry required to be undertaken by him in order to engage the jurisdiction to make an order for costs conferred by section 28 of the Resource Management & Planning Appeal Tribunal Act 1993; …".
The appellant carried on a metal fabrication and engineering business at premises that were close to land proposed for subdivision by the second respondent. In issue in the appeal before the Tribunal had been whether a subdivision should be permitted adjacent to land where noisy work was undertaken and what measures could or should be undertaken to attenuate the noise. Both sides relied on expert evidence and the experts differed as to what level of noise was acceptable. The Tribunal preferred the expert evidence called by the second respondent, primarily because the Tribunal preferred the noise standard upon which that expert relied, which was more relevant to Tasmania than that upon which the opposing expert relied.
In the impugned paragraph of the Chairman's reasons for awarding costs against the appellant he said:
"29 In this case it [the determination of the costs application] is a difficult exercise. The Appellant pursued a case in circumstances where its purpose was a defensive one. That is to say its purpose was intended to protect it from consequences which might potentially damage its business while taking no steps of its own to mitigate the noise it generated. In essence, it advanced a case which was founded upon a nuisance it created (and thus controlled) as a foundation for an argument that the developer ought not be permitted the opportunity to develop its land. In advancing that argument it relied upon a standard which on all of the evidence was not the appropriate standard in this jurisdiction. It was not precluded from arguing that there was a good reason for adopting a different standard, being the standard urged by its sound expert, but the prevailing and applicable standard was a published one and the real position is that the Appellant thereby embellished its argument that there was a potential nuisance which ought cause the Tribunal to refuse the developer's application to develop its land. In effect it shored up that argument through the utilisation of evidence which adopted a standard which assisted its case but which did not reflect the prevailing standard. It did so whilst in possession of a counter argument which adopted the applicable standard."
Blow CJ noted that the appellant contended that in that paragraph the Chairman erred in law by misinterpreting the reasoning in the Tribunal's principal decision and that that led him to erroneously reach a conclusion adverse to the appellant in relation to costs. However his Honour held:
"Under s 25(1) of the Act, a right of appeal from a decision of the tribunal to this Court is available only on questions of law. If, as asserted by the appellant, the learned Chairperson made a mistake as to the line of reasoning that he and his colleagues had adopted when they determined the appeal, that was a mistake of fact, not an error of law."
Before this Court counsel for the second respondent, Mr Spence, contends that the Chairman's decision referenced the "merits decision" of the Tribunal in the appeal, set out the submissions of the parties, set out the principles that guided the exercise of his discretion, and then, based on that material, recorded the findings that are complained of. Mr Spence submits that each of the Chairman's findings was open to him on the material before the Tribunal. He also makes the point that the appellant's position relies on the proposition that the matters enumerated by the Chairman at [29] of his reasons were not contained in the merits decision, but, Mr Spence says, that is wholly unsurprising given that those matters represented the Chairman's findings for his costs decision, that is to say his reasons for that decision based on all of the material and arguments before him on the costs application, of which the merits decision was one component.
On behalf of the appellant, Mr McElwaine SC contends that if the Chairman "materially misunderstood or mischaracterised the primary decision" as the basis for the exercise of his discretion to make a costs order, then he erred and his decision is open to review on a question of law, even if the appeal raises a mixed question of fact and law. Mr McElwaine argues that the Chairman's misunderstanding and mischaracterisation is manifest from the following:
·     no finding was made by the Tribunal that the appellant pursued its case for a defensive purpose;
·     it was not found that the appellant advanced a case founded upon a self-created nuisance as requiring refusal of the application for subdivision;
·     the Tribunal did find that an expert witness called by the appellant referred to a standard for the assessment of noise impacts applicable in Victoria, rather than by reference to a lower standard described in the Tasmanian Environmental Protection Policy (Noise) 2009, but it also found that residents were likely to be adversely impacted, absent the implementation of attenuation measures on the land;
·     the Tribunal did not criticise the appellant in its contention that a different measure for noise impact should be adopted;
·     no finding was made that the appellant embellished its argument about the potential for nuisance.
Mr McElwaine submits that Blow CJ erred in his decision in that he did not turn his mind to the scope of the appeal right of the appellant in the appeal before him. Mr McElwaine argues that the appeal did not invite, nor require his Honour to determine whether the Chairman should have made a particular finding of fact, but that his Honour ought to have considered his process of fact-finding as it related to the exercise of his discretion as to costs. Approached in that way Mr McElwaine argues that it was open for the appellant to contend that the Chairman committed reviewable legal error in one or more of a number of ways. For that approach he relies on the authority of Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [12] Gleeson CJ, [34] McHugh and Gummow JJ and [108], [116], [126] and [132] per Kirby J; Haritos v Commissioner of Taxation [2015] FCAFC 92 at [218]; Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 at [53]-[54] per Finkelstein J, and Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280 at [47]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Tisdall v Webber (2011) 193 FCR 260, and Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272.
In his written submissions Mr McElwaine contends that it was open to the appellant to contend that the Chairman committed such reviewable legal error characterised in five ways. He adumbrated those possible ways as follows:
"4.7   First, if the reasoning process was irrational, illogical or not based on findings or inferences of fact supported by logical grounds. Why that is so in this case is because the first respondent was required to be satisfied as to fairness and reasonableness as a condition precedent to displacement of the default costs provision. Satisfaction in this context requires jurisdictional fact-finding. Accordingly absence of logical connection between the primary decision and the costs decision is a reviewable legal error.
4.8 Second, if the factual substratum for the forming of the requisite opinion required by section 28(2) did not exist.
4.9     Third, if the first respondent drew a conclusion about the findings of fact which it did make in its primary decision, which conclusion was irrational, illogical or not based on the decision-making revealed in the primary decision.
4.10   Fourth, if the decision of the first respondent lacks in 'intelligible justification'
4.11   Fifth, if the decision of the first respondent was not reached by a process of logical reasoning." (Footnotes omitted.)
I do not accept that those contentions can be made good in this case. Rather, as Mr Spence noted in his submissions, the appellant, in an "effort to sidestep the restriction upon reviewable error", is seeking to characterise the errors of fact complained of as errors of law by arguing that the Chairman's findings and/or conclusion expose illogical or irrational reasoning.
The starting point, in my view, remains the following passage from the judgment of Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54 at 77:
"A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia 'from any decision of the Tribunal in that proceeding' but only 'on a question of law'. The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact."
In my view, for the reasons that follow, there is no error of law as asserted in the facts as the Chairman "found them to be". I should add that it is not asserted that this was a "no evidence" case in the sense that there was simply no material upon which an order for costs could have been made. And contrary to the appellant's submission, there was a "factual substratum" sufficient for the exercise of the discretion to order costs against it. To my mind the appellant's complaint, however presented, is no more than that the Chairman made mistakes of fact in reciting or framing that substratum. It should be borne in mind that it is trite that reasons such as those of the Chairman under consideration in this appeal should not to be scrutinised with an eye to error by over-zealous review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). In any event, the asserted deficiencies in the substratum could not be regarded as sufficiently significant to allow it to be said that the substratum for an adverse costs order "did not exist".
Indeed, bearing in mind that the Chairman was a member of the Tribunal responsible for the primary decision, as well as the author of the costs decision, and reading the two decisions together, as they should be read, I am of the view that the appellant's complaints relate purely to relatively peripheral matters of fact and do not raise an error of law or even an error involving a mixed question of fact and law. In any event, to my mind, if there is any appealable error on the part of the Chairman identified by the appellant in its submissions as set out above, then any such error can be characterised as inconsequential. In my view, contrary to the written reply submissions of counsel for the appellant, it can confidently be said that any asserted error was so insignificant that the failure to take it into account could not have materially affected the decision. Where it is concluded that an error was of that kind, then the application for review of the decision must fail (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 46, and Lansen v Minister for Environment and Heritage (2008) 174 FCR 14 at [121]-[125]).
Moving on however to deal with the appellant's contentions, absent a claim of "Wednesbury unreasonableness", and having dealt with the asserted lack of existence of a factual substratum for the costs order, each of the appellant's remaining characterisations of the errors asserted as errors of law rely to a greater or lesser extent upon illogicality and/or irrationality as constituting a ground of review. Even if it is not a precondition for relief that it be established that the decision would have been different but for the lack of reason or logic (Haritos v Commissioner of Taxation (above) at [213]), and even assuming that the appellant is correct in submitting, as it does, that jurisdictional fact-finding was involved in the need for the Chairman to be satisfied as to fairness and reasonableness as a condition precedent to displacement of the default costs provision in the RMPAT Act that each party pay its own costs, it does not follow that just any instance of want of logic in the connection between the primary decision and the costs decision in this case will amount to a reviewable error of law.

In St Helen's Area Land Care and Coast Group Inc v Break O'Day Council [2007] TASSC 15, 16 Tas R 169 at [47]-[53] Blow J (as he then was) with whom Evans J agreed, considered and commented on a number of cases dealing with the question of whether illogical reasoning can amount to an error of law. The cases reviewed were R v District Court of the Metropolitan district Holden at Sydney; ex parte White (1966) 116 CLR 644; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (above); Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388; Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 30 WAR 97; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992. His Honour then observed at [54] as follows:
"54 In the light of that comment, I do not think one should regard S20 and SGLB as establishing that illogical reasoning in fact-finding always amounts to an error of law for the purpose of a statutory appeal from a specialist tribunal. It is necessary to consider the language and purpose of the section creating the right of appeal in any particular case. We are concerned with the Resource Management and Planning Tribunal Act 1993 ('the RMPAT Act'), s25(1), which confers a right of appeal from a decision of the Tribunal 'on a question of law'. Plainly that provision was not intended to permit anyone to appeal on the ground that the Tribunal had made a wrong finding of fact. Illogical or irrational reasoning can have a number of undesirable outcomes: (i) a wrong finding of fact; (ii) a correct finding of fact, without the support of impeccable reasoning; or (iii) a failure to make a finding of fact as to an issue, despite the presence of sufficient evidence for a finding to be soundly made. I do not think one could sensibly ascribe to Parliament an intention that there was to be a right of appeal in any of those circumstances when Parliament did not intend there to be a right of appeal if the Tribunal made a wrong finding of fact. The intention of Parliament was that fact-finding was to be a matter for the Tribunal, and that there was to be a right of appeal for the purpose of enforcing the Tribunal's obligation to conduct its proceedings and its decision-making in accordance with the law: Kempster v Manning [2006] TASSC 31 at par41. For these reasons, I conclude that the assertion that the Tribunal's impugned reasoning was illogical or irrational does not raise a question of law within the scope of s25(1)."
I accept the submission of counsel for the appellant that the development of the law in Australia since that analysis by Blow J in St Helen's Area Land Care and Coast Group Inc v Break O'Day Council has overtaken any view that illogicality or irrationality may never raise a question of law within the scope of s 25(1). In his written submissions in reply, Mr McElwaine set out the following comprehensive review of the more recent cases in this area:
"2.4   In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (2010) 240 CLR 611 each of Gummow ACJ and Kiefel J (in the minority) and Crennan and Bell JJ (in the majority) accepted that the required satisfaction of the Minister pursuant to section 65(1) of the Migration Act 1958 engaged jurisdictional fact-finding: Gummow ACJ and Kiefel J at [40] and Crennan and Bell JJ at [104].
2.5 Here the first respondent may only make a costs order which displaces section 28(1) if it 'is satisfied that it is fair and reasonable to do so.' Accordingly, 'the existence of the state of mind itself (constitutes) a jurisdictional fact.'
2.6     Each joint judgment in SZMDS accepts that illogicality or irrationality in jurisdictional fact-finding is an error of law because it is a jurisdictional error: Gummow ACJ & Kiefel J at [38] and [40], Crennan and Bell JJ at [119].
2.7     There are differences between the minority and majority views as to the test which is applicable. Gummow ACJ and Kiefel J focused upon the reasoning process; it is the reasons to which one looks to decide whether the determination was 'irrational, illogical and not based on findings or inferences of fact supported by logical grounds.'
2.8     Crennan and Bell J posited three circumstances:
•   if only one conclusion is open on the evidence;
•   if the decision was simply not open on the evidence; or
•   if there is no logical connection between the evidence and the inferences or conclusions drawn.
2.9     Heydon J did not examine these questions because he found as a fact that the decision of the Tribunal was not illogical.
2.10   The joint reasons of Hayne, Kiefel and Bell JJ in Minister for Immigration & Citizenship v Li [2013] HCA 18 (2013) 249 CLR 332 did not confine Wednesbury unreasonableness to irrational or bizarre decision-making. They recognised that a conclusion of unreasonableness may be applied to a decision 'which lacks an evident and intelligible justification.' By application of this reasoning their Honours inferred that the Tribunal failed to discharge its function according to law in that it did not conduct the review which was required.
2.11   French CJ proceeded on the basis that the statutory provisions must be taken to require the decision-maker to exercise the power reasonably and accepted that arbitrary or capricious decision-making may constitute a reviewable legal error.
2.12   Gageler J confined his analysis to Wednesbury unreasonableness in the outcome of the decision.
2.13   Commenting upon the decision in Li, Professor Gummow AC has recently observed that what is:
'Not fully resolved is the situation where the reasons express the giving of weight to relevant considerations, dismiss the irrelevant from consideration, state the law correctly, but, as a non sequitur, reach a decision at odds with what has gone before in the reasons. May this then be a case of jurisdictional error as identified by the joint reasons in Li, because the relevant conferral of power by the legislature is conditioned on its exercise not producing a decision lacking evident and intelligible justification?'
2.14   He then draws attention to the decision of the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1, (2014) 308 ALR 280 at [45-47].
2.15   In Tisdall v Webber [2011] FCAFC 76 (2011) 193 FCR 260 Greenwood J, Tracey J concurring, reiterated his earlier views as expressed in Wecker v Secretary, Department of Education, Science & Training [2008] FCAFC 108 (2008) 168 FCR 272 whereby his Honour endorsed the view that review is open where the impugned decision is properly characterised as 'irrational, illogical and not based on findings or inferences of fact supported by logical grounds'. Buchanan J expressed the view that 'it may not be correct to reject illogicality as constituting an error of law in every case. In a case of suggested illogicality, or a faulty inferential reasoning, the decisive test is not whether there was an error in logic or reasoning but whether there was no foundation for the conclusion reached.'
2.16   The appellant also relies upon Haritos v Commissioner of Taxation [2015] FCAFC 92 at [218] at [212-213] and [217-218]." (Footnotes omitted, citations inserted.)
In Minister for Immigration v SMZDS (above) Crennan and Bell JJ said at [135]:
"On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision."
Gummow ACJ and Kiefel J said at [40]-[41]:
"It was against this background that, when considering s 65 of the Act in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB, Gummow and Hayne JJ said:
'The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned. The delegate was in the same position as would have been the Minister (s 496) and the Tribunal exercised all the powers and discretions conferred on the decision-maker (s 415).
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.'
However, it should be remarked that what is characterized as the 'critical question' should not receive an affirmative answer that is lightly given. It may be noted that the outcome in SGLB and in Applicant S20/2002 was to deny the presence of jurisdictional error. This reflected the approach upon judicial review earlier expressed in Wu Shan Liang to which earlier reference has been made.
Similar reasoning to that found in SGLB has been applied by the Full Court of the Federal Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs, which in turn was followed in authorities including the decision of Gordon J in SZLGP v Minister for Immigration and Citizenship, upon which Moore J particularly relied in the present case."
In Minister for Immigration and Citizenship v Li (above) at [76] Hayne, Kiefel and Bell JJ said:
"As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion 'if upon the facts [the result] is unreasonable or plainly unjust'. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification."
In Haritos v Commissioner of Taxation (above) a Full Court of five judges of the Federal Court observed at [212] that it may be an error of law to make a decision which is irrational, illogical and not based upon findings or inferences of fact supported by logical grounds, citing Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (above) and SZMDS at [40] per Gummow ACJ and Kiefel J; at [130] per Crennan and Bell JJ. Notably, the Court was not concerned in the appeal with the question of whether the lack of reason or logic related to a matter going to jurisdiction so as to amount to jurisdictional error. The court found that the approach by the tribunal concerned involved an error of law in the drawing of a conclusion about the nature or character of the evidence of an expert witness that was irrational, illogical and not based on findings or inferences supported by logical grounds. The court said at [217] that the error could be seen as equivalent to finding a fact with no evidence, or to drawing a conclusion that it was reasonably open to make a finding, when it was not so open.
Whichever of the approaches identified in the passages set out above one takes, that is to say by posing any of the questions; whether only one conclusion was open on the evidence, whether the decision was simply not open on the evidence, whether there was no logical connection between the evidence and the inferences or conclusions drawn, whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds, whether the decision maker drew a conclusion about findings of fact which conclusion was irrational or illogical or not based on the primary decision, whether the decision lacks an evident and intelligible justification, or whether the decision was not reached by a process of logical reasoning, the answer, in my view, is "no". That, to my mind, is abundantly clear from a review of the primary decision and the costs decision read as a whole. After this appeal was heard counsel for the appellant referred the Court to the observations of the High Court in Wei v Minister for Immigration and Border Protection [2015] HCA 51 at [23] and [33]-[35]. Nothing in those observations causes me to alter the view I have reached.
In this regard I accept as relevantly accurate the following analysis of "the salient features" of the Tribunal's primary decision as set out in the second respondent's written submissions:
"(a) At paragraphs [2] and [16] the Tribunal observes that the Appellant seeks to enforce the attenuation buffer prescribed by the Kingborough Planning Scheme 2000. That buffer is 500m and the nearest lot within the development will be 40m from the Appellant's operations.
(b)   At paragraphs [7]-[9] the Tribunal summarises the Appellant's concerns and identifies that while the Appellant claims to have done what they can to minimise noise, they have not installed any noise mitigation measures at their site.
(c)   At paragraphs [20]-[34] the Tribunal considers the Appellant's argument that cl S6.2.1.1 must be considered on the basis that the proposal is a 'sensitive use' and determines, contrary to the Appellant's submissions, that the proposed subdivision is not a 'sensitive use' and cl 6.2.1.1 does not apply 20.
(d)   At paragraphs [36]-[40] the Tribunal considers whether the 2 limbs of cl 6.2.1.2, as the applicable standard, are disjunctive or conjunctive. The Proponent contended that a disjunctive interpretation ought to be preferred however addressed both tests in the alternative. The Tribunal determined that both tests must be satisfied.
(e)   At paragraphs [41]-[42] the Tribunal identifies, contrary to the Appellant's submission, that the relevant consideration is whether the design of the subdivision takes into account the location and exposure to the risk of nuisance. There is no list of matters that must be implemented in every case 21.
(f)   At paragraphs [48]-[49], in considering the evidence of the acoustic engineers, the Tribunal observes that the significant difference between the Appellant's and Proponent's experts is that the Appellant adopted a noise criteria based on interstate policies that:
'... more easily grounds an argument that nuisance caused by noise emanating from the Appellant's plant is likely, and is more difficult to satisfactorily mitigate.'
(g)   At paragraphs [58]-[59] the Tribunal notes that the Appellant's evidence adopts a standard outside of the State imposed policy and proceeds on erroneous assumptions as to operating hours. The Tribunal comments that the assumption does not affect the assessment of noise, only the way that the results of modelling are applied to determine the relevant impacts.
(h)   At paragraph [71] the Tribunal concludes that the lots closest to Algona Road and proximate to the Appellant's business are at risk of nuisance. That is contrary to the evidence of the Appellant which claimed that all lots were affected by nuisance.
(i)    At paragraph [73] the Tribunal adopts, in reliance on the evidence of the Proponent, the Tasmanian noise criteria as providing the applicable criteria against which to measure the risk of nuisance.
(j)    At paragraph [74] the Tribunal prefers the evidence of the Proponent as to the ability to implement appropriate measures to mitigate noise impacts."
Against that matrix I accept as relevantly accurate the analysis of the reasoning of the Chairman's costs decision as set out in the second respondent's written submissions. That is that the Chairman, "having noted that regard should be had to the primary decision and having summarised the second respondent's application for costs and the appellant's submission in response", then observed that:
"(a)The overarching question for the Tribunal is whether it is fair and reasonable in all the circumstances to depart from the statutory position that each party pay their own costs.
(b)Departure from the statutory presumption is grounded in the principle that a party should be compensated for the costs of an appeal where those costs are the result of what may broadly be described as 'unnecessary conduct' on the part of the proposed recipient of the order.
(c)Reference to 'unnecessary' is used as a broad term to pick up the factors identified as relevant considerations under s.28(3) of the Tribunal Act.
(d)Prolonging the appeal and increasing the costs of the appeal as a result of unnecessary conduct ought to be compensated subject to consideration of the whole of the conduct of the parties.
(e)Conduct that raises irrelevant, unarguable or unmeritorious issues is regarded as unnecessary.
(f)Unnecessary conduct includes asserting and indefensible position, where that position is indefensible on the basis of all the relevant evidence.
(g)A party putting the other party on notice of the weakness of their position and warning of the risk of costs is not inappropriate.
(h)To rely upon such notice in a subsequent application for costs the Proponent is required to demonstrate that the Appellant's persistence in the appeal in light of the deficiencies in their position having been exposed caused unnecessary costs to be incurred."
I further, similarly, accept the following summary by the second respondent of the Chairman's reasoning consequent upon the observations outlined above:
"32 Applying that reasoning to the circumstances of the application being considered the Tribunal further reasoned that:
(a)The Appellant's case was founded upon the nuisance that it created and thus controlled.
(b)The Appellant relied upon a standard to substantiate its claim for creating a nuisance that was not the appropriate standard in the Tasmanian jurisdiction and thereby embellished its argument that it caused a nuisance that ought to prevent the proponent from developing its land.
(c)Its purpose was defensive, seeking to prevent the adjacent development while taking no steps to mitigate the noise it generated.
(d)The Appellant advanced its argument while in possession of a counter argument that relied upon the applicable Tasmanian standard.
(e)The proponent wrote to the Appellant and in doing so identified these deficiencies. That did not cause the Appellant to reflect upon their position and consequently they pursued their appeal with the knowledge the costs would be pursued.
(f)The offer to settle set out the relevant considerations and posed appropriate questions for the Appellant.
(g)The Appellant's failure to mediate was relevant.
(h)The comprehensive nature of the offer to settle was decisive and that costs run from the date of that offer.
(i)That no response was made and the Appellant did not pause to consider its case was relevant."

In my view, neither that reasoning process nor the conclusion reached was irrational, illogical or not based on findings or inferences of fact supported by logical grounds. Further, it cannot be said that "the factual substratum for the forming of the requisite opinion required by s 28(2) did not exist” and it cannot be said that the decision lacks "intelligible justification". The appellant's five separate submissions to that effect, set out earlier in these reasons, are not made out, and grounds (a), (b) and (c) of the notice of appeal fail.
The second issue agitated in this appeal relates to a letter written by the second respondent to the appellant on 2 December 2013. In that letter the second respondent's solicitors urged the appellant to abandon the appeal to the Tribunal on the basis that it had no merit, and threatened to apply for costs if the appeal proceeded and failed. The letter by its terms made a proposal to consent to the appeal being dismissed with no order for costs if that were agreed to within 21 days. It also noted that the appellant "would entertain reasonable amendments to the conditions included upon the permit by Council". The letter was not expressed to be a "Calderbank letter" but was headed, "Without prejudice save as to costs".
The grounds of appeal in relation to this issue are that the learned Chief Justice erred in law in that:
"(d) He wrongly concluded that the Chairman of the first respondent did not err in law in treating, as decisive, the correspondence of 2 December 2013;
(e) He failed to determine that an error by the Chairman of the first respondent in the identification of the legal effect of the correspondence of 2 December 2013 was an error of law;
(f) He failed to determine that characterisation by the Chairman of the first respondent of the correspondence of 2 December 2013 as decisive, amounted to an error of law in that in so doing the Chairman misconceived the question or questions of fact that had to be determined when the principles relevant to such correspondence in the exercise of the cost discretion were to be applied; and/or
(g) He failed to determine whether the Chairman of the first respondent, as a matter of construction of the correspondence of 2 December 2013, properly identified the legal effect of the terms of the offer contained therein as bearing upon the exercise of his discretion pursuant to section 28 of the Resource Management & Planning Appeal Tribunal Act 1993."
Blow CJ dealt with the appellant's argument made to him that the Chairman erred in law in drawing an impermissible inference from the letter at [33] of his Honour's reasons for decision in the following terms:
"33 In his reasons at [30], the learned Chairperson said that all of the matters referred to in the paragraph that I have just quoted, at [30] above, were pointed out to the appellant in the letter of 2 December 2013. The appellant contends that that was not correct. That is to say, it contends that some of the matters mentioned by the learned Chairperson at [29], quoted in full above, were not pointed out to the appellant in the solicitors' long letter. If the conclusion that all of the matters mentioned were pointed out in the letter was an erroneous conclusion, did that amount to an error of law? The appellant contends that the learned Chairperson made an error that should be categorised as the drawing of an inference when no such inference was open on the facts as found. It contends that the impermissible drawing of an inference is an error of law, and relies on Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. I disagree with that analysis. A mistake as to what points were or were not made in a letter amounts to a mistake of fact, not the drawing of an impermissible inference. If the learned Chairperson made the error asserted, he did not err in law. I therefore need not go through [29] of the reasons with a fine tooth-comb looking for a point that was not made in the solicitors' letter."
Blow CJ next dealt with the complaint that the Chairman erred in regarding the letter as "decisive". His Honour said at [34]-[37]:
"34      The appellant also contends that the learned Chairperson erred in law by regarding the letter of 2 December 2013 as 'decisive'. That contention relates to [33] of the learned Chairperson's reasons, which reads as follows:
'Notwithstanding the statutory presumption in favour of each party paying its own costs, the Tribunal is satisfied that in all of the circumstances, it is appropriate that the Applicant [the developer] should have an order for costs against the Appellant. But that order should only run from the period after the letter dated the 2^nd December 2013, which recognises the legitimacy of the Appellant's concern with respect to the development, [and] the need to preserve its position ahead of the obtaining of evidence but that the costs incurred by the Applicant after that date were incurred as a result of the Appellant's conduct, and unnecessarily so. Decisive in this case is the very comprehensive nature of that letter, and the very detailed analysis it contained. That it was neither answered, nor causative of a sufficient level of engagement to procure a resolution is relevant. The Appellant must have perceived the attenuation zone [a buffer zone provided for in the relevant planning scheme] to be a "force field" around its business, impenetrable even in the face of evidence exhibiting enough to enable the coexistence of the Appellant's use and the Applicant's development.'
35        It was open to the tribunal to decide what weight was to be attached to the fact that the letter in question had been written. There was no reason why the tribunal could not conclude that, having regard to all the relevant circumstances, that letter was so significant that the developer should recover its costs of the proceedings as from the date of the letter.
36        In the written and oral submissions of counsel for the appellant in relation to this contention, it was argued at length that the letter did not amount to a Calderbank offer: Calderbank v Calderbank [1976] Fam 93. That case stands for the proposition that, in civil litigation, when one party makes an offer of settlement on a 'without prejudice as to costs' basis, that offer is unreasonably refused or not accepted, the parties proceed to trial, and the offeree obtains a worse result than what was offered, then ordinarily the offeror should be awarded costs as from the date of the offer. As counsel for the appellant has rightly pointed out, the letter of 2 December 2013 did not contain an offer in the Calderbank sense, but an invitation to the appellant to entirely surrender its case, coupled with a vague invitation to engage in further discussion as to 'reasonable amendments' to permit conditions. But the learned Chairperson did not make any error as to the status of the letter. At [21] he said:
'… The proposal in the letter of 2^nd December 2013 was not strictly speaking a Calderbank letter … The point of the letter on the Applicants [sic] case is that [it] represents a turning point in the conduct of the matter, the ignoring of which content, the Appellants [sic] undertook "at its own risk" and on notice of what might follow.'
37        I am not persuaded that the learned Chairperson erred in law as to the status of the letter in question. The weight that he chose to give that letter was a matter for him. He did not err in law by treating it as 'decisive'."
The appellant contends in its written submissions:
"5.2 In various ways the appellant contended at grounds 2(c)(ii) and (e) that the first respondent was mistaken in its understanding of the contentions made in the correspondence of 2 December 2013. Once again, and without examining the process of decision-making by the first respondent, his Honour characterised the asserted errors as factual.
5.3 The correspondence is at AB 84. The first respondent characterised it as 'not strictly speaking a Calderbank letter' but nonetheless regarded it as 'decisive' in the exercise of its discretion. Ultimately labels do not matter; one needs to be concerned with the effect of the correspondence upon the impugned decision.
5.4 For the reasons as set out above, his Honour ought to have considered whether the first respondent misunderstood or mischaracterised the correspondence as contended by the applicant. The appellant does not say that this Court must decide whether it was fair and reasonable to make a costs order. The contention is that the first respondent did not approach the task correctly in order to form that view. In approaching the matter in this way, an error of principle is revealed in the reasoning process.
5.5 This is illustrated by two specific cases which were concerned with appeals on a question of law from the exercise of a costs discretion involving Calderbank correspondence.
5.6 The first is Perry v Comcare (2006) 150 FCR 319, a decision of Greenwood J. In that case the AAT made a costs order, purportedly, in reliance upon Calderbank correspondence. The unsuccessful party appealed pursuant to section 44 of the AAT Act. Ultimately the appeal failed. However, his Honour accepted the proper characterisation of the legal error as an erroneous construction by the Tribunal of the legal effect of the correspondence. Particular reliance is placed upon his Honour's reasoning at [38-39].
5.7 The second is Green v Bruckner [2009] NSWSC 700 where Price J characterised the legal error as misconceiving the question of fact which was required to be determined in the application of the principles which inform the exercise of the costs discretion based on Calderbank correspondence.
5.8 Neither case is novel. It is well established that non-jurisdictional error of law includes the exercise of a discretion other than in accordance with settled principles.
5.9 Accordingly his Honour erred in not considering the appellant's contention that a misunderstanding by the first respondent of the effect of the correspondence, and an unprincipled application of the effect, amounted to an error of law."
I accept that had the letter been expressly or impliedly written in reliance upon the principles derived from Calderbank v Calderbank [1976] Fam 93, the proper characterisation of any misapplication of the principles which inform the exercise of the costs discretion based on that case, or any misconception as to the facts that were relevant for the purpose of the application of the relevant principles would amount to a legal error. However, as Blow CJ pointed out, the letter did not contain a true Calderbank offer and the Chairman did not make any error as to the legal status of the letter in that regard.
The appellant contends that the application of a label does not matter, and the question which arises is how "the first respondent may properly take into account correspondence of the character which was sent in this case". The appellant argues that the legal question is whether the Chairman approached his consideration of the letter in a principled way. To my mind, assuming for a moment that there were relevant errors of fact, and assuming that the Chairman treated the letter itself, as opposed to the matters the letter exposed, as "decisive", which I do not accept, there are no principles derived from Calderbank v Calderbank that are relevant because the letter was not of a kind that could be characterised as a "Calderbank offer", and there were no principles arising from s 28 of the RMPAT Act that I can identify as being misapplied. It cannot, in my view, be said that the Chairman's exercise of his discretion was vitiated.
Moreover, I apprehend that none of the asserted errors of fact would have affected the costs decision in any material way. The Chairman was entitled to give the weight to the letter that he did. He may have treated some of the matters pointed out to the appellant in the letter, and the lack of any reaction on the part of the appellant to those matters as decisive, but I cannot, for my part, see that he treated the mere fact of the letter, or some legal effect to be ascribed to it, as decisive. The letter did not contain an offer capable of acceptance (indeed it probably contained no true offer of compromise at all), so the only relevance of its invitation to the appellant to surrender or capitulate was the extent to which it drew attention to the conduct of the parties. That some of the matters mentioned by the Chairman at [29] of his reasons for decision were not pointed out to the appellant in the solicitors' long letter would, in my view, have had no effect on the costs decision. As counsel for the second respondent submitted:
"The letter is not at its core an offer to settle, but rather a letter which, having made plain the perceived flaws to the Appellant's argument, makes the continuation of the proceedings susceptible to the conclusion that the Appellant has thereby unreasonably prolonged the proceedings and increased costs, that being a matter that is relevant to the Tribunal's determination of whether it is fair and reasonable to order the party to pay another's costs."
Once again, I reject, in respect of the grounds of appeal in relation to this issue, the appellant's submission that the Chairman's reasoning can be properly characterised in one or more of the five separate ways it argued disclosed legal error. In particular it cannot be said, in my view, to use the words of Crennan and Bell JJ in SZMDS at [135], that there was only one conclusion open on the evidence and the decision-maker did not come to that conclusion, or that the decision to which the decision maker came was simply not open on the evidence, or that there was no logical connection between the evidence and the inferences or conclusions drawn. As their Honours said, "whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker." There is plenty of room for that in this case.
In my view, none of grounds (d), (e), (f) or (g) of the notice of appeal are made out.
None of the grounds of appeal having succeeded, I would dismiss the appeal.

File No 968/2015

SAUNDERS & WARD PTY LTD v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL

REASONS FOR JUDGMENT FULL COURT

PEARCE J
5 August 2016

I agree with Estcourt J that, for the reasons given by his Honour, the appeal should be dismissed.
Since this appeal was heard, counsel for the appellant referred the members of the Court to decisions of the Full Court of the Federal Court concerning legal unreasonableness as a ground of judicial review. The principles were examined in detail in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 and summarised in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [58] to [65]. As Estcourt J pointed out in his reasons, the law has developed since the decision of this Court in St Helen's Area Landcare and Coastcare Group Inc v Break O'Day Council [2007] TASSC 15, 16 Tas R 169. However, it is unnecessary to conduct a detailed review in this appeal because, to the extent that the arguments of the appellant depend on establishing legal unreasonableness, it has not, for the reasons stated by Estcourt J, demonstrated that the Tribunal's decision was outside the bounds of legal reasonableness or outside the range of possible lawful outcomes in the statutory and evidentiary context in which it was made.