Stapleton and Metro NORTH-WEST Joint Development Assessment Panel
[2016] WASAT 55
•13 MAY 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION: STAPLETON and METRO NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2016] WASAT 55
MEMBER: MS D QUINLAN (MEMBER)
MS M CONNOR (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 13 MAY 2016
FILE NO/S: DR 141 of 2015
BETWEEN: MARK STAPLETON
Applicant
AND
METRO NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
Catchwords:
Development application Costs Proceedings dismissed for want of prosecution Application for costs by respondent Onus on respondent in costs application Unrepresented applicant Onus on applicant to convince the Tribunal to determine review proceedings in his favour Noncompliance with programming orders Failure to engage with the proceedings Principles to be applied in applications for costs Costs awarded
Legislation:
State Administrative Tribunal Act 2004 (WA), s 9, s 31, s 46(3), s 87
Planning and Development Act 2005 (WA)
Result:
The application for costs is allowed and within 14 days the applicant is to pay the respondent's costs of these proceedings fixed in the amount of $8,500.00.
Summary of Tribunal's decision:
The applicant lodged an application for a mixed use development on Beaufort Street, Inglewood. The application was refused by the respondent at first instance and upon a reconsideration, principally related to a view that, not only did the proposed development not meet a number of planning policies and guidelines, it was manifestly excessive in terms of built form, scale, height and bulk and was therefore contrary to orderly and proper planning. All of these issues required evidence in order for the Tribunal to make a determination, in particular, expert planning evidence. The onus lay with the applicant to convince the Tribunal that the proposed development should be approved. The respondent engaged the services of an expert planner. The applicant did not provide any witness statements, expert or otherwise, despite being provided with multiple opportunities to do so, including the vacating of hearing dates. The implications of an applicant failing to provide evidence, in particular expert evidence, was canvassed with the applicant at two directions hearings following noncompliance with programming orders.
From 2 November 2015, the applicant failed to answer correspondence from the respondent and did not comply with any programming orders. Compounding this unreasonable conduct, the applicant failed to attend his scheduled hearing on 4 February 2016 and provided an unsatisfactory excuse for his nonattendance upon being telephoned by the Tribunal. The proceedings were dismissed for want of prosecution under s 46(3) of the State Administrative Tribunal Act 2004 (WA). The respondent then made an application for costs with a supporting affidavit and submissions. The applicant did not provide any submissions opposing the application.
The Tribunal found that in all of the circumstances, and in particular noting that the applicant was unrepresented, the applicant acted unreasonably from 2 November 2015 in the way that he conducted proceedings DR 141 of 2015. The applicant consistently failed to engage with the proceedings. This unreasonable conduct caused the respondent to unnecessarily incur costs for which it should be compensated pursuant to the Tribunal's powers in s 87(2) and s 87(3) of the State Administrative Tribunal Act 2004 (WA).
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: State Solicitors Office of Western Australia
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Aydogan and Town of Cambridge (2006) 44 SR (WA) 198; [2006] WASAT 98
Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53
Humphreys and City of Stirling [2011] WASAT 105
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302
Rainbow Pty Ltd and Hawkins [2007] WASAT 216 (S)
Springmist Pty Ltd and Shire of AugustaMargaret River (2005) 41 SR (WA) 207; [2005] WASAT 143 (S)
Tran and Town of Vincent (2009) 65 SR (WA) 260; [2009] WASAT 123 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
REASONS FOR DECISION OF THE TRIBUNAL:
Background
On 26 September 2014, Mark Stapleton (applicant) lodged an application for a mixed use development for Lots 13, 14 and 600, Beaufort Street, Inglewood. On 20 April 2015 the application was refused by the Metro NorthWest Joint Development Assessment Panel (respondent).
On 24 April 2015, the applicant filed an application for review of the respondent's decision (DR 141 of 2015). On 7 September 2015, pursuant to an invitation by the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the respondent reconsidered its decision on the basis of amendments to the proposed development (proposed development). The respondent again refused the proposed development for a number of reasons. The respondent's reasons for refusal principally related to a view that, not only did the proposed development not meet a number of planning policies and guidelines, it was manifestly excessive in terms of built form, scale, height and bulk and was therefore contrary to orderly and proper planning.
On 4 February 2016, the Tribunal dismissed proceeding DR 141 of 2015 pursuant to s 46(3) of the SAT Act for want of prosecution. Oral reasons for that decision were provided at the hearing. The respondent sought programming orders so that the respondent could make an application for costs. The Tribunal made orders to the effect that the respondent may file an application by 18 March 2015, the applicant may reply by 3 March 2016 with further submissions from the respondent by 10 March 2016. By 17 March 2016 each party had the opportunity to request an oral hearing on the question of costs. Otherwise the respondent's application for costs would be determined on the papers. The respondent filed its application on 17 February 2016. The applicant elected not to provide any submissions and no further submissions were received from the respondent. Neither party requested an oral hearing. The Tribunal has proceeded with determining the respondent's application for costs on the documents.
It is noted that on 4 May 2016 the Tribunal received an email from the applicant stating that he had written to the representative of the respondent:
… quite a while back to confirm the applicant in this case is Established & Co pty ltd [sic]. We have not heard back in that regard and Mark Stapleton is not or never has been the applicant in this matter.
The Tribunal notes that the applicant listed on the application lodged for review in the Tribunal on 24 April 2015 was Mark Stapleton and that no order had ever been made by the Tribunal to substitute a different applicant. Further, proceedings DR 141 of 2015 have now been dismissed and the only outstanding matter for the Tribunal to determine is the costs application.
Respondent's application for costs
The respondent has made an application for its costs from 2 November 2015, the date which the respondent submits that the applicant has not been serious about prosecuting his application for review and in that regard he has acted unreasonably.
The respondent submits that the proposed development had an estimated value of $27 million and this being the case, the respondent devoted a commensurate amount of resources to the proceeding. The respondent submits that it has incurred considerable costs since 2 November 2015 in preparing for two scheduled hearings and engaging an independent expert town planning witness (expert planner).
The respondent claims the fixed amounts of $6,500 for legal costs and the disbursement cost of $14,601.93 for engaging an expert planner.
On 17 February 2016 the respondent provided written submissions and an affidavit of Mr Edward Fearis sworn on the same date. In providing these reasons for decision the Tribunal has utilised the background facts contained in that affidavit as well as the respondent's statement of issues, facts and contentions dated 9 October 2015.
The progression of the proceedings in the Tribunal
On 18 September 2015, the Tribunal ordered that the proceeding be listed for a hearing of two days on 15 and 16 December 2015. The Tribunal also made various programming orders. In order to comply with these orders, the respondent undertook various tasks, including, on 21 October 2015, engaging an expert planner, to prepare an expert witness report and appear as an expert witness at the hearing.
On 20 November 2015, the respondent wrote to the Tribunal requesting that the proceeding be called on for directions following an indication by the applicant, by two emails dated 20 November 2015, that he did not intend to file any witness statement(s). The applicant advised he intended his witnesses, Mr Mark Stapleton and Mr Jason Stapleton, to give entirely oral evidence at the hearing.
A directions hearing was subsequently listed on 27 November 2015 with the applicant attending by telephone. At the directions hearing, his Honour Judge Parry explained to the applicant that neither he (nor his brother) would be able to provide evidence as an expert witness. The directions hearing was then adjourned until 2 pm while the applicant considered his position. When the directions hearing recommenced at 2 pm the applicant and the respondent both attended by telephone. The applicant informed the Tribunal that he intended to engage an independent expert to provide evidence and requested an extension of the deadline for the parties to file and serve any witness statement(s).
Thus, on 27 November 2015 the Tribunal ordered that the hearing dates of 15 and 16 December 2015 be vacated and that the proceeding be listed for a hearing of two days on 4 and 5 February 2016 with the necessary extension of time for various programming orders, in particular witness statements.
In early to midJanuary 2016, the respondent unsuccessfully attempted to contact the applicant on four occasions as the applicant had not filed and served any witness statement(s), nor a reply to the respondent's without prejudice draft conditions.
On 18 January 2016, the respondent wrote to the Tribunal requesting that the proceeding be again called on for directions following unsuccessful attempts to contact the applicant regarding noncompliance with the orders of the Tribunal.
A directions hearing was subsequently listed on 22 January 2016 which the applicant again attended by telephone. At the directions hearing, the applicant was warned by Senior Member McNab of the risk in not filing any witness statement(s). Despite this, the applicant confirmed to the Tribunal that he did not wish to file any witness statement(s). The Tribunal thus ordered that the hearing be confirmed for 4 February 2016 only. The Tribunal also extended the deadline for the applicant to file and serve his reply to the respondent's without prejudice draft conditions to 27 January 2016. This document was never filed with the Tribunal nor served on the respondent. The applicant has not filed and served any documents in this proceeding since 2 November 2015.
On 4 February 2016 the hearing commenced with the respondent, its counsel and witness present, however, the applicant failed to appear to present his case. The hearing was then adjourned while a Tribunal officer contacted the applicant by telephone. The hearing recommenced with the applicant appearing by telephone. The applicant was unable to provide a satisfactory reason for his nonattendance. As noted above, the Tribunal provided oral reasons on 4 February 2016 for its decision to dismiss the proceeding for want of prosecution pursuant to s 46(3) of the SAT Act. The powers of the Tribunal were exercised by a legally qualified member of the Tribunal.
Awarding costs under the SAT Act
The effect of s 87(1) of the SAT Act, relevant to these proceedings, is that the starting point is that each party bear their own costs. This is the usual approach in review proceedings under the Planning and Development Act 2005 (WA) (PD Act): Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53 at [28].
However, pursuant to s 87(2) of the SAT Act, the Tribunal may exercise its discretion and make an order for the payment by a party of all or any of the costs of another party. In the recent decision of the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32, Murphy JA (Martin CJ and Corboy J agreeing) found at [51]:
Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
(footnotes omitted)
The power to make a costs order includes the power under s 87(3) of the SAT Act to make an order for the payment of an amount to compensate a party for any expenses resulting from the proceeding. The effect of s 87(3) is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss in connection with the conduct of the proceedings before the Tribunal: Springmist Pty Ltd and Shire of AugustaMargaret River (2005) 41 SR (WA) 207; [2005] WASAT 143 (S) at [64].
Costs orders are generally only made in review proceedings where a party has acted unreasonably, including where a party has failed to meet the expectation expressed in s 87(4) of the SAT Act (though not presently relevant): Tran and Town of Vincent (2009) 65 SR (WA) 260; [2009] WASAT 123 (S) at [35]; Humphreys and City of Stirling [2011] WASAT 105 at [27].
The Tribunal is conscious that most, if not almost all, of the costs decisions in matters determined in the Tribunal under the PD Act involve costs awards against decision makers under s 87(4) and not applicants. In Aydogan and Town of Cambridge (2006) 44 SR (WA) 198; [2006] WASAT 98 (Aydogan) costs were awarded to the respondent in relation to the conduct of an applicant that was probably not as unreasonable as the applicant in the present proceedings. However, consideration is given to the fact that the applicant in these proceedings is unrepresented, unlike in Aydogan.
Arguably, the level of unreasonable conduct required for an unrepresented applicant to be ordered to pay the decision makers costs would be expected to be particularly unreasonable to persuade the Tribunal to exercise its discretion to depart from the starting position of each party should bear their own costs.
Issue to be determined
The issue to be determined in the respondent's application for costs is whether, since 2 November 2015, in all of the circumstances of these proceedings, has the applicant acted unreasonably so that the Tribunal should exercise its discretion to compensate the respondent for any expenses, loss or inconvenience resulting from the proceeding.
Consideration
There were a number of significant issues raised in these proceedings by the respondent as to why the proposed development should not be approved. All of these issues required evidence in order for the Tribunal to make a determination, in particular, expert planning evidence. The onus lay with the applicant to convince the Tribunal that the proposed development should be approved. The respondent engaged the services of an expert planner. The applicant, despite being provided with multiple opportunities to do so, did not provide any witness statements, expert or otherwise, for the scheduled hearing of 4 February 2016.
Since 2 November 2015 the applicant has not complied with any programming orders, and since 20 November 2015, has failed to respond to correspondence from the respondent's solicitors. The respondent has incurred expenses in attempting to correspond with the applicant in order to prepare for hearing, attending two additional directions hearings regarding noncompliance with orders, as well as a vacation of the December 2015 hearing dates and a relisting of the hearing. Moreover, the applicant failed to attend the final hearing of the matter on 4 February 2016 to advance his case. It was apparent on 4 February 2016, particularly after the Tribunal telephoned the applicant, that he was not serious about prosecuting his application for review.
Specific directions hearings were held before his Honour Judge Parry on 27 November 2015 and Senior Member McNab on 22 January 2016 regarding the applicant's conduct in progressing this matter to hearing. He was informed of the risk of providing no expert planning evidence. Hearing dates have been vacated and extensions to programming orders were allowed. The applicant did not comply with any programming orders from 2 November 2015 nor answer any correspondence from the respondent after 20 November 2015. Compounding this conduct, the applicant without proper excuse failed to attend the hearing scheduled for 4 February 2016. The excuse offered by the applicant when he was telephoned by the Tribunal after failing to appear on 4 February 2016 was that he had not received the notice of the hearing. This excuse was not accepted by the Tribunal as, even if the notice had not arrived by 4 February 2016, this should not have affected whether the applicant attended the hearing as this date had been in place since 27 November 2015 and confirmed, albeit shortened to only one day, on 22 January 2016 at directions hearings where the applicant was present via telephone. The applicant also failed to file and serve his reply to the without prejudice conditions before the hearing on 4 February 2016 despite being afforded on 22 January 2016 an extension of time to do so.
The Tribunal finds that in all of the circumstances, and in particular noting that the applicant was unrepresented, the applicant acted unreasonably from 2 November 2015 in the way that he conducted proceedings DR 141 of 2015. The applicant consistently failed to engage with the proceedings. This unreasonable conduct caused the respondent to unnecessarily incur costs for which it should be compensated pursuant to the Tribunal's powers in s 87(2) and s 87(3) of the SAT Act.
Quantum of costs
The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. In the unusual event that an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that parties will approach proceedings in a way that minimises costs to their clients. If parties choose to approach proceedings in a way which incurs substantial costs for them, it will be a rare case in the Tribunal where all of those costs would be recoverable: J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [38].
An award of costs is not intended to be a full indemnity for the actual expenses incurred by a party: Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 at [67].
The Tribunal has given consideration to 'the nature of the matter, its complexity, its importance, urgency, and the amount of time and effort required to properly prepare and present the case': Rainbow Pty Ltd and Hawkins [2007] WASAT 216 (S).
In relation to the legal costs sought by the respondent, attached to the affidavit of Mr Fearis is a costs estimate which indicates that the estimated legal costs incurred by the respondent for all of proceedings DR 141 of 2015 total $18,315.00. The respondent, however, is seeking legal costs of $6,500.00 being all of its legal costs from 2 November 2015, the date it submits that the unreasonable conduct commenced. In following the consistent approach in the Tribunal to the task of assessing the quantum of costs to be awarded cited above, the Tribunal declines to award the respondent all of its legal costs since 2 November 2015. However, the Tribunal considers that the respondent should be compensated for a substantial proportion of those costs as the unreasonable conduct of the applicant did increase legal costs between 2 November 2015 and 4 February 2016.
In the exercise of its discretion, and based upon its experience in such matters, noting in particular that the applicant was unrepresented and the Tribunal considers that the respondent should not be compensated for all of its legal costs since 2 November 2015, the Tribunal is of the view in all of the circumstances that a fair proportion of the amount claimed is $4,000.
In relation to the amount claimed for the cost of engaging an expert planner, it is noted that the planner was engaged to provide expert planning evidence on 21 October 2015. The total cost of engaging the expert planner was $16,243.92. The bulk of that cost was incurred after 2 November 2015 and the respondent claims $14,601.93, being all of the costs incurred after 2 November 2015.
The itemisation provided by the expert planner does not reveal the hourly rate for work done but rather lists a number of activities and one total amount due. This makes it somewhat difficult to assess what amounts claimed related to each item of work listed. The amount of costs awarded by the Tribunal will not, except in very exceptional circumstances, be on an indemnity basis, and therefore the respondent cannot expect to be reimbursed for all the expert planning costs it has incurred.
The scale fee allowed for legal practitioners under the most recent costs determination relating to the Tribunal is $275 per hour for a junior practitioner and $374 per hour for a senior practitioner. The Tribunal considers it to be reasonable to award costs on the basis of a figure of $300 per hour for the expert planner. Doing our best on the information available and only allowing for work done since 2 November 2015, it seems reasonable to allow:
•1 hour for a site inspection;
•9 hours for the preparation of an expert witness statement;
•2 hours for preparation and review of the draft without prejudice conditions; and
•3 hours for preparation and short attendance at the hearing on 4 February 2016.
This comes to $4,500.00. This is considerably less than the amount claimed by the respondent. However, in the exercise of its discretion in all of the circumstances of this matter, and based upon its experience in such planning matters, the Tribunal considers this to be a fair amount.
Orders
Accordingly, the Tribunal will order as follows:
1.The respondent's application for costs pursuant to s 87(2) of the State Administrative Act 2004 (WA) is allowed.
2.Within 14 days of the date of this order the applicant is to pay the respondent's costs of these proceedings fixed in the amount of $8,500.00.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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