Watman and Morgan v ACT Planning and Land Authority
[2010] ACAT 25
•18 March 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WATMAN AND MORGAN v ACT PLANNING AND LAND AUTHORITY
(Administrative Review) [2010] ACAT 25
AT 83 of 2009
Catchwords: COSTS
Legislation:
ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 10, 48, 60
ACT Civil and Administrative Tribunal Rules 2009 (ACT) r 7
Tribunal: Professor P Spender, Presidential Member
Date of Orders: 18 March 2010
Date of Reasons for Decision: 14 May 2010
IN THE AUSTRALIN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) AT 83 of 2009
BETWEEN: GREG WATMAN
Applicant
AND: AMELIA MORGAN
Applicant
AND: ACT PLANNING & LAND
AUTHORITY
Respondent
Tribunal:Professor P Spender, Presidential Member
Date: 18 March 2010
ORDER
There is no order as to costs arising from the respondent’s challenge to the Tribunal’s jurisdiction.
................................................
Professor P Spender
Presidential Member
REASONS FOR DECISION
On 22 September 2009 the applicants filed an application for review with the Tribunal. The application sought review of a decision by the respondent to refuse a variation of the lease over Block 23, Section 22, Weetangera to permit two dwellings.
The decision was made by the respondent on 21 August 2009. The applicant received notice of the decision on 26 August 2009. Section 10(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (‘The ACAT Act’) requires that:
An application to the tribunal for review of a decision must be made by a person within 28 days after the day the decision to be reviewed is made.
Section 10(3) of the ACAT Act further states that if notice of the decision is given to the person later than 5 days after the day the decision is made then the application may be made within 28 days after the day the notice is given.
In this case, however, the notice of decision was received by the applicants 5 days after the decision was made so section 10(2) operated rather than the proviso in section 10(3). Due to the operation of section 10(2) the application was required to be submitted by the close of business on 18 September 2009. By filing the application on 22 September the applicant was 4 days late in total, which included 2 working days.
The Tribunal made various orders for the provision of the tribunal documents and held a directions hearing on 20 October 2009. On 20 October 2009 the Registrar made orders requiring various interlocutory steps to be carried out by the parties including participating in a mediation and the filing of statements of facts and contentions. The parties attended a mediation on 6 November 2009, however no agreement was reached. In accordance with the timetable set at the directions hearing on 20 October 2009 the applicants filed their facts and contentions on 1 December 2009.
By letter received by the Tribunal on 12 November 2009 the respondent challenged the Tribunal’s jurisdiction on the basis that the Tribunal had no power to make orders where the application was late, irrespective of whether or not the respondent consented.
The challenge made by the respondent in this matter was one of several matters involving ACT government agencies where a challenge was made to the Tribunal's jurisdiction on the basis of a late application having been filed. A directions hearing was held in relation to those matters, including the present matter, on 27 November 2009. At that directions hearing a timetable was made for the filing of facts and contentions by all parties regarding the jurisdiction of the Tribunal.
The respondent provided a statement of facts and contentions in relation to jurisdictional issues on 4 December 2009 and the applicants’ facts and contentions regarding jurisdiction was filed on 8 December 2009. In the facts and contentions filed on 8 December 2009, the applicants sought an order for costs, contending the following:
Costs
14. Had the respondent in the appendix to its notice of decision on reconsideration (at T12) given correct advice as to the time limit applying to the Tribunal for review of its decision, the applicants would have arranged for their application for review to be filed within the time limit specified in section 10 of the ACAT Act;
15. Because the respondent gave incorrect advice in its notice of decision on reconsideration of the relevant time limit, the applicants have incurred the costs of and incidental to:
(a) the respondent's application to the Tribunal made by letter dated 12 November 2009 concerning issue of time; and
(b) the application for interim or other orders (attachment A)
16. Section 48 of the ACAT Act empowers the Tribunal to make orders for costs, including (but not limited to) where a party to an application caused unreasonable delay or obstruction before or while the Tribunal was dealing with the application.
17. The applicant contends that the circumstances referred to in paragraph 14 above warrant the Tribunal making an order that the respondent pay the reasonable costs of the applicants of and incidental to the matters referred to in paragraph 15 above.
The reference to the interim order referred to in the applicants’ paragraph 15(b) is a reference to the applicant's application for an order pursuant to Rule 7 of the ACT Civil and Administrative Tribunal Rules 2009 (ACT) that the time for the applicants to make their application to the Tribunal for review of the decision of the respondent be extended to the date of lodgement.
10. An interlocutory hearing was held on 17 December 2009 and the issue regarding the Tribunal's jurisdiction was subject to extensive submissions made on behalf of the respondent and other ACT government agencies as well as representatives of various applicants including the present applicants.
11. An order was made by the Tribunal on 16 March 2010 which extended the time for making the application for review of the decision until 22 September 2009, the date of lodgement. This order was made pursuant to Rule 7(4) of the ACT Civil and Administrative Tribunal Rules 2009 (ACT) on the basis that there were reasonable grounds for extending the time for making the application for review.
12. In a separate order dated 18 March 2010, the Tribunal also ordered that there was no order as to costs arising from the respondent's challenge to the Tribunal's jurisdiction.
13. In a directions hearing held on 19 March 2010 oral reasons were given for the orders made on 16 March 2010 and 18 March 2010, however the applicants requested a statement of reasons under section 60 of the ACAT Act in their letter dated 19 March 2010.
14. The Tribunal notes that the respondent challenged the jurisdiction of the Tribunal at a late stage, notably after the conduct of mediation and after the applicants had filed their facts and contentions in the substantive matter. However, there was no equivocation by the respondent about the jurisdictional challenge once it had been undertaken. The Tribunal notes the applicants’ arguments asserting that incorrect material was provided by the respondent to the applicant regarding the time within which the application for review must be filed. The Tribunal notes that the notice of decision on reconsideration dated 24 August 2009 states on page 1 (T12) that ‘the time limit to make a request for review is 28 days from receiving this notice of decision’. It continues: ‘the time it can be extended in some circumstances. Check with the ACAT for more details’.
15. This information was in fact erroneous because the 28 days ran from the notice of decision, not the date of receipt. However, there was no further evidence of any additional misleading conduct by the respondent and this issue was not the subject of findings of fact in the interlocutory hearing held on 17 December 2009.
16. Due to the passage of Rule 7 of the ACT Civil and Administrative Tribunal Rules 2009, the respondent's challenge to the Tribunal's jurisdiction was rendered nugatory and in a further directions hearing held on 16 February 2010 the respondent conceded that the challenge to jurisdiction could not be sustained due to the operation of Rule 7. The respondent had challenged an earlier drafting of Rule 7 as ultra vires but did not continue with the challenge under the new drafting of the rule which came into effect on 2 February 2010.
17. The power to award costs is conferred under section 48 of the ACAT Act. The general principle regarding costs orders is stated in section 48(1) that parties to an application must bear their own costs unless this Act otherwise provides or the Tribunal otherwise orders. Section 48(2) sets out three situations in which the Tribunal may order costs. Sections 48(2)(a) and 48(2)(c) are not relevant to the present application however section 48(2)(b) states that if the Tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the Tribunal was dealing with the application then the Tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction.
18. The Tribunal does not consider that there was unreasonable delay in this matter and, as stated above, there was no equivocation on the part of the respondent once the decision was taken to challenge the Tribunal's jurisdiction. The Tribunal also does not consider that the respondent caused obstruction before or while the Tribunal was dealing with the application. The Tribunal considers the word ‘obstruction’ to mean conduct which deliberately prevents the progress of the matter. Although the information provided by the respondent to the applicants may have misled them regarding the time within which an application to the Tribunal must be made, the Tribunal does not consider that this erroneous information, regrettable though it is, amounts to obstruction as defined above i.e. deliberately preventing the progress of the matter.
19. This matter was part of a wider challenge which was undertaken by the respondent and although it was not necessary for the Tribunal to finally rule on the challenge due to the passage of Rule 7, the challenge was not devoid of merit. It was not necessary for the Tribunal to hand down a decision on the merits as the amendments to the rules enabled the matter to be dealt with by use of the rules to extend the time within which the application for review could be lodged.
20. Therefore the Tribunal does not consider that the conduct referred to in section 48(2) of the ACAT Act is established in this case nor are there any further discretionary grounds pursuant to which the Tribunal might ‘otherwise order’ under section 48(1). The Tribunal accordingly finds no grounds which displace the operation of the general rule as to costs stated under section 48(1) of the ACAT Act, therefore in relation to the respondent's challenge to the Tribunal’s jurisdiction, the Tribunal orders that each party bear their own costs.
…………………………………..
Professor P Spender
Presidential Member
PUBLICATION DETAILS
NOT TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 83 of 2009
APPLICANT: GREG WATMAN AND AMELIA MORGAN
RESPONDENT: ACT PLANNING AND LAND AUTHORITY
COUNSEL APPEARING: N/A
SOLICITORS: APPLICANT: MR J OLIVER
RESPONDENT: MS L TOMLINS
TRIBUNAL MEMBER/S: Professor P Spender, Presidential Member
DATE/S OF DECISION: 14 MAY 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
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