WESTERN AUSTRALIAN PLANNING COMMISSION and GRAHAM

[2013] WASAT 112 (S)

JURISDICTION	:	STATE ADMINISTRATIVE TRIBUNAL
ACT	:	LAND ADMINISTRATION ACT 1997 (WA)

CITATION : WESTERN AUSTRALIAN PLANNING

COMMISSION and GRAHAM [2013] WASAT 112

(S)

MEMBER	:	MS H LESLIE (MEMBER)
HEARD	:	DETERMINED ON THE DOCUMENTS
DELIVERED	:	10 AUGUST 2017
PUBLISHED	:	23 AUGUST 2017
FILE NO/S	:	DR 190 of 2012

BETWEEN : WESTERN AUSTRALIAN PLANNING

COMMISSION

Applicant

AND

NEIL ROBERT GRAHAM
VALMAI EVELYN GRAHAM

First Respondents

MANDURAH ENTERPRISES PTY LTD

Second Respondent

Catchwords:

Costs - Land resumption legal costs - Conduct of parties - Delay in proceedings
- Strikeout costs - Interim application costs

[2013] WASAT 112 (S)

Legislation:

Land Administration Act 1997 (WA), s 177(2), s 217 s 217(2), s 221, s 222,
s 222(1), s 222(1)(a), s 223(9), Pt 10
State Administrative Tribunal Act (2004) (WA), s 9, s 46(1), s 50, s 50(1),
s 50(3), s 60(2), s 87, s 87(1), s 87(2), s 87(6)

State Administrative Tribunal Rules 2004 (WA), r 42, r 42(2)

Result:

Landowners' application for costs against the acquiring authority in compulsory land resumption case refused

Summary of Tribunal's decision:

Following a protracted period of litigation in other forums between the parties concerning the validity of the acquisition, and some two and a half years after the final determination of the validity by the High Court of Australia, the acquiring authority made an application to the Tribunal for the determination of the quantum of compensation for the compulsory acquisition. The landowners had not made any application in any forum for the determination of this issue. In the Tribunal, an interim application to strike out the acquiring authority's application was made and determined. The Tribunal rejected the application. That determination was the subject of appeal to the Supreme Court of Western Australia. Following the partially successful appeal, that portion of the application to the Tribunal which remained live was referred back to the Tribunal for determination along with the question of the landowners' costs in the Tribunal. Following some negotiation, the acquiring authority withdrew its application to the Tribunal by consent of all parties. The landowners sought an order that the acquiring authority pay their costs of the Tribunal proceedings.

The Tribunal rejected the application for costs and ordered that each party pay its own costs. The Tribunal was not satisfied that there was anything in the conduct of the acquiring authority that would justify an order that it pay the landowners' costs. To the contrary, the Tribunal was of the view that the conduct of the landowners, particularly in relation to delay, was a factor weighing significantly against the award of costs to the landowners.

[2013] WASAT 112 (S)

Category: B

Representation:

Counsel:

Applicant	:	Ms M Payne
First Respondents	:	Ms L Rowley
Second Respondent	:	Ms L Rowley

Solicitors:

Applicant	:	State Solicitor for Western Australia
First Respondents	:	Norton Rose
Second Respondent	:	Norton Rose

Case(s) referred to in decision(s):

Ampezzo Pty Ltd and Franken [2009] WASAT 109
Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50
Clifford and Shire of Busselton [2007] WASAT 89 (S); (2007) 52 SR (WA) 58
Franks v Warringah Council [2003] FCA 1254
Garner v Rohanna Pty Ltd [1999] WASCA 178
Graham v Western Australian Planning Commission [2014] WASCA 234
Graham v Western Australian Planning Commission [2014] WASCA 234 (S)
Oshlack v Richmond River Council (1998) 193 CLR 72

WA Country Builders and Hathersage Nominees Pty Ltd [2016] WASAT 70

Western Australian Planning Commission and Graham & Ors

[2013] WASAT 112

Western Australian Planning Commission and Shim [2007] WASAT 262

Western Australian Planning Commission v Questdale Holdings Pty Ltd

[2016] WASCA 32

Winterbourn and Western Australian Planning Commission [2013] WASAT 72

[2013] WASAT 112 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

The issue for determination

1. This is a decision on an application by the first respondents and second respondent (landowners) for their costs in matter DR 190 of 2012 (the substantive application) following the making of consent orders on 22 June 2015 that the applicant, Western Australian Planning Commission (WAPC) have leave to withdraw its application. On the same date, also by consent, the landowners were ordered to file an itemised bill of costs and any submissions in support of the ordering of costs and WAPC was ordered to file any evidence regarding costs and any submissions opposing the ordering of costs. An order was made that the costs question would then be determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

2. The order on the costs application is as follows:

1)	The Respondents' application for an order that the Applicant pay the Respondents' the costs of the proceeding is refused.
2)	Each party shall bear their own costs of the proceeding.

1. The reasons for that order are as set out below:

The substantive application

4 By application lodged 23 May 2012, WAPC applied under s 222(1)

of the Land Administration Act 1997 (WA) (LA Act) to have the Tribunal determine the quantum of compensation payable for the compulsory acquisition of certain lands, being four lots, owned by the landowners (for convenience to be referred to as Lot 30 and Lot 8 (originally owned by the first and second named landowners) and Lot 49 and Lot 7(originally owned by the third named landowner). The lands are located in Mandurah and the purpose of the original compulsory acquisition order (Taking Order) was associated with the Perth to Mandurah railway and the North Mandurah Bypass Road.

5              The substantive application was made because of WAPC's claim that

the landowners had failed to act to determine the issue thus enlivening the
WAPC's right to apply.

[2013] WASAT 112 (S)

Assessing compensation under the LA Act

6              Part 10 of the LA Act deals with compensation in relation to

compulsory acquisition of land. It has been conveniently previously summarised by the Tribunal in Western Australian Planning Commission and Graham & Ors [2013] WASAT 112 (Graham 2013) at [3] - [6] (per Chaney J) as follows:

Part 10 Div. 1 deals with who is entitled to compensation. Division 2 deals with the making of a claim for compensation. It requires claims to be made within six months of registration of the relevant taking order or such extended time as the Minister may permit (s 207) of the LA Act.

Part 10 Div. 3 requires the acquiring authority to consider the claim, and make an offer for compensation. Where the offer is rejected, s 220 of the LA Act provides that compensation may be determined by any one of the following methods:

(a)	by agreement between the acquiring authority and the claimant; and
(b)	by an action for compensation by the claimant against the acquiring authority; or
(c)	by reference of the claim to SAT.

Section 221 of the LA Act provides that if an offer is not made within the time limit for the making of offers, the claimant may commence either an action for compensation against the acquiring authority, or refer the claim for compensation to SAT. Thus it can be seen that the LA Act gives to a claimant an option of commencing an action for compensation, which is an action in a court of competent jurisdiction, or alternatively referring the claim to SAT. Referral of claims to SAT is governed by s 224 of the LA Act which provides that both the claimant and the acquiring authority can appoint assessors who, by virtue of s 226(1), will constitute SAT together with a judicial member or a senior legally qualified member for the purpose of determining the amount of compensation. It is, however open to the parties to agree in writing that compensation be assessed by SAT constituted solely by a judicial member or a senior member who is legally qualified, thus dispensing with the involvement of assessors.

Section 222 of the LA Act deals with the situation where the claimant fails to commence proceedings for compensation, either in a court or in SAT, within six months after serving notice of rejection of the acquiring authority's offer. In those circumstances, the acquiring authority may, after giving 30 days notice to the claimant, apply to SAT for a direction. SAT may direct either that the offer is to be accepted by the claimant, or that the claim is to be heard and determined by SAT. There is no option provided in s 222 for the acquiring authority to commence an action in a

[2013] WASAT 112 (S)

court of competent jurisdiction as an alternative to applying to SAT for a
direction.

7              In relation to costs, it is to be noted that s 223(9) of the LA Act

provides that, in an action for compensation in a court, the 'costs of the action are at the discretion of the court'. There is no provision in the enabling Act regarding questions of costs in proceedings taken in the Tribunal.

History prior to the substantive application - 2003 to 2012

8              A consideration of the extensive history of this matter is necessary to

see the conduct of the parties in context for the purpose considering the
costs application.

The original compulsory acquisition - 2003

9              Resolution of the claim for compensation had been delayed over

many years as a result of litigation concerning the validity of the Taking Order dated 5 August 2003 made by WAPC pursuant to s 177(2) of the LA Act. On 8 August 2003, the Taking Order was registered and WAPC became the registered proprietor of the four lots.

1. Claims for compensation (the original claims) were lodged in respect of Lot 49 on 12 November 2003 and in relation to Lots 7, 8 and 30, on 29 April 2004. Offers of compensation and of advance payments were made to the landowners in the amount of the WAPC's proposed compensation amounts (over $2.5 million in total) in 2004. All offers were rejected by the landowners as insufficient compensation but the advance payments were accepted and paid to the landowners.

Challenge to validity of the Taking Orders - 2006

11            In October 2005, the landowners obtained legal advice. Thereafter,

the validity of the Taking Orders was challenged by the landowners in the Supreme Court by proceedings issued on 18 January 2006. That claim was dismissed by the Supreme Court on 23 Feb 2007.

Appeals and further subdivisions of the original lots - 2008 to 2010

12            The landowners appealed to the Court of Appeal, which in

dismissing the appeal in 2008, also upheld the Taking Order save as to a certain portion of Lot 30.
13	Following the Court of Appeal decision, in 2009 the original Lot 30 was subdivided into two new lots (thereafter referred to as new Lot 32 and

[2013] WASAT 112 (S)

new Lot 30). One of these new lots comprised land, which according to the Court of Appeal, had been taken invalidly. That land (Lot 32) was transferred back to the original first landowners or respondents. The other new lot comprised that part of the original Lot 30 which, according to the Court of Appeal, was taken validly. WAPC remained the registered proprietor of that lot (new Lot 30).

14            The landowners further appealed to the High Court. On

3 February 2010, the High Court granted special leave to appeal and then declared that some aspects of the Taking Order were invalid and other aspects valid.

15            In essence, in its decision, the High Court determined that the

Taking Order was valid insofar as it related to Lot 49 and new Lot 30 but invalid insofar as it purported to apply to portions of Lots 7, 8 and new Lot 32. The High Court allowed the appeal in part, having concluded that certain portions of Lots 7, 8 and new Lot 32 were not acquired for the purpose of the relevant public work or incidental purposes. These portions had been zoned for urban use. However, they had been taken by WAPC to avoid the cost of building a level crossing to provide access to those portions of the lots which would otherwise be landlocked after the railway was built. These portions of the land were to be reconveyed to the landowners. The High Court made certain determinations that part of Lots 7 and 8 were landlocked as a consequence of severance by the public works. The question of road access provision to those lots became critical in the determination of the issues of injurious affection and severance.

16            The landowners took and take the position that these determinations

substantially recast the nature of the compensation claim. The landowners claim that as a result, the original claims fall away and a new claim (the new claim) had to be formulated because of the determinations made by the High Court.

17            Following the decision in the High Court, a process similar to that

which had followed the Court of Appeal decision was followed. Lots 7 and 8 were each ultimately subdivided into two new lots. One of each of the subdivided lots comprised the portion of the lot that was found to be taken invalidly. These lots became Lots 607 and 608 and were eventually transferred back to the landowners in July 2012. The other subdivided lots comprised the portion of each lot found to be taken validly. WAPC remained the registered proprietor of those lots (to be referred to as new Lots 7 and 8)

[2013] WASAT 112 (S)

Negotiations between WAPC and the landowners after February 2010

18            Following the High Court decision, negotiations proceeded to try and

resolve the question of compensation and associated issues. The landowners did not at any relevant time commence an action for compensation or refer the matter to the Tribunal.

19            Among the issues to be dealt with was a question of road access to

the portions of the lots which had to be reconveyed to the landowners as a result of the High Court's ruling and which were found to be landlocked as a result of the public works (the remaining land).

20            There is an issue as to the extent to which relevant and timely

answers to the questions about road access provision to the remaining land were provided by WAPC to the landowners. The landowners maintain that in order for them to obtain proper valuation advice to inform their compensation negotiations, they needed proper planning advice and that for all of this advice to be obtained, they required accurate information from WAPC as to how and when the access issue to the remaining land was going to be resolved.

21            In August 2010, the first named landowner suffered significant

health deterioration. It is claimed that the state of his health made the
progression of the claims difficult despite his best efforts.

22            What is described as an 'open offer of settlement' (but which is

conceded to not constitute an 'offer of compensation' within the meaning of the LA Act) was made to the landowners at the end of December 2010. WAPC offered to resolve the question of compensation by the conveyance of the remaining land back to the landowners and included repayment by the landowners of a portion of the advance payment that had been made to them by WAPC in 2004. The landowners' solicitors replied to that office seeking further information. However, the landowners did not provide any substantive response to the offer.

23            By its letter dated 13 October 2011, WAPC gave the landowners

30 days' notice as required under s 222 of the LA Act of its intention to commence proceedings to obtain a determination of the quantum of compensation payable in respect of the land acquired by the WAPC. By letter dated 4 November 2011, the solicitors for the landowners requested that WAPC delay initiating action in the Tribunal until the end of March 2012. WAPC acceded to that request but no action for compensation was commenced by the landowners in any forum as at May 2012. WAPC says no substantive response to the proposal to settle was received.

[2013] WASAT 112 (S)

24            The landowners' failure to commence any action to have the

compensation determined by the end of March triggered the entitlement of WAPC to apply to the Tribunal to have the claim heard and determined. By letter of 4 May 2012, the solicitors for WAPC advised that if the landowners were not in a position to respond to a settlement proposal which had been put on 30 December 2010, then the solicitors were instructed to commence proceedings in the Tribunal within seven days. On 11 May 2012, solicitors for WAPC wrote to the landowners' solicitors enclosing a copy of the proposed application and raising some preliminary issues. Neither of these letters elicited any response to the offer. By letter dated 16 May 2012, the solicitors for the landowners wrote to the solicitors for WAPC advising that the landowners preferred to have the quantum of compensation payable to them determined by the Supreme Court rather than the Tribunal.

1. On 23 May 2012, the application to the Tribunal was filed by

   WAPC.

Progress of the substantive application in the Tribunal

26            There has been no substantive determination of the matter in the

Tribunal. In the course of three years, between the date of the application and the date of its withdrawal, there have been five directions hearings, an interim argument (the strikeout application) as to whether the claim should be struck out for want of jurisdiction or otherwise transferred to the Supreme Court, and then, following an appeal of that decision to the Supreme Court, (the strikeout appeal), a consent withdrawal of what remained of the application after the partial success of the strikeout appeal.

Directions hearings

27            The application came on for directions hearing on 15 June 2012. On

that date the matter was adjourned in order to allow the landowners to obtain further planning, engineering and valuation advice and to formulate a fresh or revised claim for compensation and, the landowners having raised the question of whether or not the appropriate venue for the determination of the compensation issue was the Supreme Court or the Tribunal, to enable the landowners to formulate a preliminary question for determination in relation to the Tribunal's jurisdiction and to consider whether the matter should proceed to a mediation or to a determination of the preliminary issue. It is to be noted that by letter dated 12 June 2012, the landowners had offered to issue appropriate proceedings in the Supreme Court by 30 October 2012. This offer was repeated by letter

[2013] WASAT 112 (S)

dated 24 October 2012. Both offers were refused. It is to be noted that six months went by without a preliminary question being formulated and filed with the Tribunal for determination.

28            On 26 October 2012, the matter came on for directions hearing again

and was adjourned to a further directions hearing on 25 January 2013 on the basis that 'the landowners' claimant will have made significant progress on the valuation reports [by then]'. It is to be noted that no reference to the preliminary question is made in those orders notwithstanding the content of the letter dated 24 October 2012 referencing the offer to transfer by 30 October 2012.

29            It appears that by January 2013, the landowners had formulated the

new claim. As is recited by Chaney J in Graham 2013, the strikeout
decision, at [16] - [17]:

'... fresh claims in the total sum of $4,400,000 were served on the
[WAPC] on 24 January 2013[.]

[The landowners], in effect, submit that the claim lodged on 24 January 2013 should be treated as re-starting the compensation process, that is, as giving [the landowners] the right to commence a compensation action under s 221 of the LA Act on the basis that the acquiring authority had failed to serve an offer of compensation within 120 days after service of the claim[.]

30            At this time, (by letter dated 22 January 2013), the landowners again

raised the question of the transfer of the proceedings to the Supreme Court and enclosed a minute of orders, proposing that the jurisdiction question be resolved by consent to 'relieve both parties of the necessity of arguing such an application for the transfer including relief from the potentially substantial costs which would attach to such an application'. That offer was not taken up.

1. The matter came on again for directions hearing several days later on 25 January 2013 at which time the following orders were made:

• That the landowners' claimants are to file and serve an application to transfer the whole of the proceedings to the Supreme Court within 14 days;

• That the WAPC is to file and serve a response to the application within a further 14 days;

• Thereafter the parties are to file and serve a joint statement of facts; and

[2013] WASAT 112 (S)

• The proceeding is adjourned to a further directions hearing on 8 March 2013 unless the Tribunal receives advice from the parties requesting the Tribunal to list the application directly before a Judicial Member of the Tribunal for determination.

32            On 5 February 2013, the landowners applied to the Tribunal by way

of interim application (the strikeout application) for orders either under s 50(1) of the SAT Act (striking out the proceedings on the basis that it considers that the matter would be more properly dealt with by the Supreme Court) and under s 50(3) (referring the claim to the Supreme Court in the event that the landowners fail to issue appropriate similar proceedings in the Supreme Court within 28 days of the strikeout order) or in the alternative striking out the proceedings on the basis that it has no jurisdiction to determine the original claims. The strikeout application also sought costs.

33            By letter of the same day, the landowners reiterated that they 'will

not press for your clients to pay costs but will agree costs in the cause if a client will now consent to this application without the need for further costs to be expended'.

1. On 8 March 2013, the matter came on again for directions hearing and the strikeout application was programmed for hearing.

2. On 24 April 2013, consent orders were made providing for certain extensions of time for the filing of documents by both sides.

The interim hearing (strikeout hearing)

1. The strikeout application was then heard and on 12 July 2013, Chaney J made orders dismissing it. No costs order was made on the strikeout application but it is relevant to this costs application to consider his reasoning.

2. In the strikeout decision Graham 2013, Chaney J:

1)	commented adversely on the time taken by the landowners in pursuing their claim;
2)	rejected the proposition that the new claim lodged on 24 January 2013 should be seen as a 'restart' of the compensation process, that is, as giving the landowners the right to commence compensation action under s 221 of the LA Act on the basis that the acquiring authority

[2013] WASAT 112 (S)

had failed to serve an offer of compensation within 120 days after service of the claim. His Honour rejected the landowners' contention that on this basis the Tribunal lacks jurisdiction to deal with an application under s 222 of the LA act because the landowners have not rejected an offer, or an amended offer, so as to fulfil the preconditions in s 222(1)(a) to an application under s 222;

3) rejected the landowners' submission that the 'scheme' of s 222 of the LA Act enables the acquiring authority to only commence proceedings in the Tribunal, which is generally a no costs jurisdiction, as a measure to protect a non-responsive claimant from potential costs orders and to provide a relatively summary procedure to deal with non-responsive claimants;

4)        rejected the landowners' submission that although the Tribunal is available and equipped to deal with land resumption cases as a low-costs forum, the Supreme Court was the 'first port of call' or a 'preferred forum' for compensation claims for land acquisition at the discretion of the claimant;

5)        rejected the landowners' submission that they ought be permitted to pursue their claim in the Supreme Court because costs recoverable in that jurisdiction are likely to exceed the costs recoverable in the Tribunal;

6)        rejected the submission that potential related (albeit only broadly articulated (described by Chaney J at [37] in Graham [2013] as 'un-particularised') proceedings in the Supreme Court was an insufficient reason without more to transfer the the Tribunal proceedings to the Supreme Court; and

7)        expressed the view that a simple preference to have claims dealt with in the Supreme Court given the lack of positive action by the landowners in progressing the matter was insufficient. As His Honour put it (also at [37] in Graham [2013]) '[t]he opportunity which the legislation gives to the claimant to commence an action for compensation in a court had passed'.

[2013] WASAT 112 (S)

Appeal of the strikeout decision Graham [2013]

38            The landowners then appealed the strikeout decision Graham [2013] to the Supreme Court of Appeal. Following a consideration of the strikeout appeal decision (Graham v Western Australian Planning Commission [2014] WASCA 234 (Graham [2014])), it appears to the Tribunal that the appeal was run by the landowners on different jurisdictional grounds to the argument at first instance. On appeal, the landowners claimed that the Tribunal lacked jurisdiction, alleging, firstly, that there had been no valid initial Taking Order in respect of the land (in 2004) and, secondly, that WAPC had made no 'offer of compensation' in respect of the land actually acquired by WAPC, and that the making of such an offer is a fact upon which the jurisdiction of the Tribunal depends. An alternate argument was run that if, contrary to the landowners' primary contentions, the Tribunal had jurisdiction, the landowners challenge the Tribunal's decision to refuse to strikeout the proceedings and asserted that the quantum of the compensation payable is more appropriately determined by the Court of Appeal for a number of reasons.

39            The appeal was in part allowed. Essentially the Court of Appeal

rejected the first proposition but found that the jurisdiction of the Tribunal is conditional on WAPC having made 'an offer'. It found that, in relation to three of the four lots (Lots 7,8 and 30), in the light of the High Court decision, no valid offer had been made and that, therefore, insofar as the application related to those three lots, the Tribunal did not have jurisdiction and the application should have been struck out. In relation to the fourth lot (Lot 49), where the Court of Appeal found that an offer had been made, the Court remitted that part of the matter to the Tribunal for determination of the question of compensation due. As was said by Martin CJ in the strikeout appeal decision Graham [2014] at [47]:

... Put another way, both the claims for compensation and the offers of compensation relate to the land purportedly taken by the taking order, rather than the land effectively taken by that order. In the case of Lot 49 there is no difference between the land purportedly taken and the land effectively taken but in the case of Lots 7, 8 and 30, it has now been determined that, unbeknown to the parties at the time, only part of each of those lots was effectively taken.

1. In relation to the disposition of the matters relating to Lot 49, Martin CJ at [58] determined that as Chaney J's analysis of the factors relevant to the exercise of his discretion under s 50 of the SAT Act (to strike out or to remit the matter to the Supreme Court) was undertaken upon his assumption that the Tribunal had jurisdiction to determine the

[2013] WASAT 112 (S)

compensation payable with respect to all four lots taken, and since 'the facts relevant to the exercise of the discretion are materially different to those assumed by the Tribunal' (in other words, that in relation to three of the four lots, no 'offer' had been made to ground the jurisdiction), the exercise of the discretion must be set aside and the matter remitted to the Tribunal for further consideration.

Appeal and strikeout application costs

41            By a supplementary decision, Graham v Western Australian Planning Commission [2014] WASCA 234 (S) (Graham [2014] (S)), the Court of Appeal made an order that WAPC pay the landowners' costs of the appeal. The question of the costs of the proceedings before the Tribunal was remitted to the Tribunal for its consideration and determination.

42            The landowners argued that the Court of Appeal should order that

they be paid their costs of the appeal and also of the proceedings in the
Tribunal essentially for three reasons:

1)       The landowners were ultimately successful in establishing that the Tribunal lacked jurisdiction in relation to three of the four lots;

2)        The landowners relied on what was said to be WAPC's rejection of an offer to resolve the application before the Tribunal on the basis that the proceedings be commenced in the Supreme Court by consent and,

3)        Because of the complexity of the issues, a taxation of costs by reference to the scale applicable in the Supreme Court rather than the Tribunal scale was warranted.

43            WAPC asserted that it was premature to make an order with respect

to costs in the Tribunal given that the proceedings with respect to one of the lots remained to be determined and that it was preferable for the Tribunal itself to exercise the jurisdiction regarding costs.

44            WAPC further submitted that the propositions upon which the

landowners were ultimately successful on appeal were not put to the Tribunal at first instance and that there was no reason why the applicable scale of costs should be other than the Tribunal's scale. WAPC submitted that the appropriate costs order was that there be no order with respect to the Tribunal's costs.

[2013] WASAT 112 (S)

1. The Court of Appeal took the view in Graham [2014] (S) at [6] - [9]

   that:

   First, the proceedings before the Tribunal have not been completed. Although the legal issues relating to the jurisdiction of the Tribunal with respect to the taking of Lot 49 are distinct from the legal issues relating to the Tribunal's jurisdiction with respect to the taking of the other lots, for reasons which we have set out, the applications to strike out the proceedings relating to all four lots were heard simultaneously and are plainly related. The ultimate disposition of the application to strike out the proceedings with respect to the taking of Lot 49 may have an impact upon the appropriate orders made with respect to the costs of the application to strike out the proceedings relating to the taking of New Lots 7, 8 and 30. For that reason alone it is preferable to leave the question of the costs of the proceedings before the Tribunal to be determined by the Tribunal after all related proceedings before the Tribunal have been resolved.

   Second, the Tribunal is not a jurisdiction in which costs are ordered as a matter of course. The principles applicable to any departure from that general practice, and the application of those principles to the circumstances of any proceedings before the Tribunal are matters best determined by the Tribunal, having regard to its policies and practices, rather than by this court.

   Third, there is a contentious issue as to the extent to which the propositions which ultimately found favour in this court were advanced in the course of the proceedings before the Tribunal. That also is a matter best determined by the Tribunal rather than this court.

   Fourth, there is a contentious issue between the parties as to the scale properly applied to any assessment of costs payable to the appellants in respect of the proceedings before the Tribunal. That again is a matter best determined by the Tribunal by reference to its policies and practices, rather than by this court.

46            It is relevant to note in relation to the question of Tribunal costs, that

in the strikeout appeal decision Graham [2014] Martin CJ observed
at [19]:

It is not clear from the materials before this court whether the arguments with respect to the Tribunal's jurisdiction that have been advanced in this court were formulated in the same way before the Tribunal. Had they been formulated in that way, it seems highly likely that the reasons given by the President would have responded more specifically to those contentions. However, because the issues now raised go to the question of the Tribunal's jurisdiction and are not affected by any evidence that was, or was not, led before the Tribunal, there is no reason why those arguments should not now be resolved, even if they were not specifically raised before the Tribunal. In this context I note that WAPC takes no objection

[2013] WASAT 112 (S)

on the grounds that the issues now raised were not raised before the

Tribunal.

Withdrawal

47            On 22 June 2015, the Tribunal ordered by consent that, pursuant to

s 46(1) of the SAT Act, WAPC have leave to withdraw the proceeding subject, in effect, to a determination of the landowners foreshadowed application for costs.

48            The context of the withdrawal was an agreement between the parties

that the quantum of compensation if any in relation to Lot 49 be determined in conjunction with the compensation for the other three lots in the Supreme Court.

Costs
49	On 22 June 2013, by consent, the landowners were ordered to file an
itemised bill of costs and any submissions in support of the ordering of costs and WAPC was ordered to file any evidence regarding costs and any submissions opposing the ordering of costs. An order was made that the matter would then be determined on the documents pursuant to s 60(2) of the SAT Act.
50	A number of extensions of time for the filing of documents were
given for both sides. The landowners ultimately filed their documents on 2 November 2015 and WAPC on 15 January 2016.
51	The matter of costs had not been determined by the time that the
Court of Appeal delivered its decision in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale).
52	On 5 May 2016, directions were made that by 20 May 2016, both
sides file any supplementary submissions they may wish to file in the light of the Court of Appeal's decision on costs in Questdale and that, thereafter, the matter of costs would be determined on the documents pursuant to s 60(2) of the SAT Act.
53	The landowners filed submissions on 20 May 2016 and WAPC on
28 May 2016. The landowners filed further submissions in reply on 28 May 2016 and WAPC on 30 May 2016.

[2013] WASAT 112 (S)

The principles applicable to an order for costs and the statutory framework

General principles

1. Section 87(1) of the SAT Act directs that unless otherwise specified

   in:

• the SAT Act;

• the relevant enabling Act; and

• in any other order of the Tribunal made pursuant to s 87(2) to s 87(6) of the SAT Act.

the parties bear their own costs in a proceeding of the Tribunal.

55            Section 87(2) of the SAT Act confers a discretionary power on the

Tribunal to make an order for the payment by a party of all or any of the costs of another party, unless specified to the contrary in the relevant enabling Act.

56            The general costs principles applicable in the Tribunal have been

conveniently summarised in a number of recent decisions (such as Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50 (Barnett) and WA Country Builders and Hathersage Nominees Pty Ltd [2016] WASAT 70 (Hathersage).

1. In terms of general principle, the following applies, (as was set out in both Barnett and Hathersage):

   The Tribunal stated in Chew and Director General of the Department of Education and Training [2006] WASAT 248 (Chew) at [85] that in exercising the discretion conferred on the Tribunal by s 87(2) of the SAT Act:

   [T]he Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes.

   Further, in Pearce & Anor and Germain [2007] WASAT 291 (S) (Pearce) at [24], the Tribunal stated:

   … Where, however, there is a genuine dispute between the parties

   to a lease, their respective rights are unclear and one or both seek

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determination of their rights in the Tribunal, the starting point remains that each party should expect to pay their own costs, unless there are circumstances of the type identified in Chew.

The Tribunal's statements in Hoskins, Chew and Pearce are consistent with Western Australia Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) where the Court of Appeal gave consideration to the operation of s 87(1) of the SAT Act and the exercise of the discretion conferred upon the Tribunal by s 87(2) of the SAT Act, albeit in relation to a different enabling Act. The following relevant principles apply to the resolution of the costs dispute:

1) Beyond s 87(4) and s 87(5) of the SAT Act and r 42(2) of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), the facts which the Tribunal is bound to consider and is precluded from considering are to be determined by implication from the subject matter, scope and purpose of the SAT Act properly construed: Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [48].

2)         The discretionary power is to be exercised judicially; that is, not arbitrarily, capriciously or so as to frustrate the legislative intent: Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [48].

3)         Although not expressed in s 87(2) of the SAT Act or elsewhere that the power is to be exercised if it is fair and reasonable in all the circumstances of the case to do so, the 'judicial nature' of the exercise of the power and the scheme of the SAT Act indicates that legislative intention: Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [49].

4)         The presumptions as to costs orders that operate in curial litigation have no application, given the provisions of s 87(1) of the SAT Act and the directive contained therein: Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [50].

5)         The onus is on the party seeking an order in its favour to establish that a favourable order should be made: Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [51].

6)         The nature of the dispute is a relevant consideration in any application for costs: Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [58].

7)         Every party to proceedings before the Tribunal is taken to be cognisant of the objectives of the Tribunal as expressly provided for in s 9 of the SAT Act: Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [54].

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8)         It will be relevant to the Tribunal to consider whether and to what extent the party who bears the onus on costs can establish that the other party's conduct in connection with the proceedings has impaired the attainment of the Tribunal's statutory objectives to have the proceedings determined fairly and in accordance with the substantial merits of the matter, with as little formality and technicality as possible and in a way which minimises the costs of the parties: Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [54].

9)         The mere fact that a party fails on some contentions advanced does not of itself signify that that party has acted 'inconsistently with the objectives in s 9 [of the SAT Act]': Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [55].

10)       Unmeritorious claims or claims made or pursued involving misconduct or which are vexatious or grossly exaggerated or presented in a way that is unduly burdensome may justify an exercise of the discretion conferred by s 87(2) of the SAT Act.

11)       The weight to be given to the mandatory consideration of a complaint offer is a matter for the Tribunal in each individual case: Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [59].

12)       Even in a jurisdiction where the general rule is that costs follow the event, it does not follow that the grant of leave to withdraw attracts an order that the withdrawing party pay the costs of the other party. The withdrawing party does not carry any onus to establish it ought not pay the other party's costs: Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [65].

The Tribunal concludes that the discretion conferred by s 87(2) of the SAT Act is informed by the overarching obligation to exercise the discretion judicially and where it is fair and reasonable in all of the circumstances, including a consideration of the nature of the jurisdiction exercised by the Tribunal 'but starting from the position that no order for costs will be made': Questdale per Martin CJ at [9]. Further, the provisions of s 49(1) of the SAT Act do not alter the nature of the discretion to be exercised by the Tribunal in awarding costs to a party pursuant to s 87(1) and s 87(2) of the SAT Act, and do not direct the Tribunal to make orders that are not consistent with the s 9 objectives of the Tribunal.

The Questdale decision

58            In Questdale, the Court of Appeal gave specific consideration to the operation of s 87(1) of the SAT Act and the exercise of the discretion conferred upon the Tribunal by s 87(2) of the SAT Act in relation to compulsory acquisition of land cases

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59            The Court of Appeal (Martin CJ, Murphy JA and Corboy J)

unanimously refused leave to appeal and dismissed an appeal brought from a costs ruling by President Curthoys J (the President) in proceedings in the Tribunal. The President, in extempore reasons, had dismissed WAPC's application for costs following the discontinuance of proceedings commenced by the landowners (Questdale) in the Tribunal. The proceedings were in the Tribunal's original jurisdiction and involved compensation for the compulsory acquisition of private land. WAPC was the acquiring authority.

1. Prior to Questdale the Tribunal had made rulings (see Winterbourn and Western Australian Planning Commission [2013] WASAT 72 (Winterbourn) (Parry DCJ) and Clifford and Shire of Busselton [2007] WASAT 89 (S); (2007) 52 SR (WA) 58 (Clifford) (Barker J)), that appeared to establish or endorse special rules for costs in such matters, relevant to a no-costs starting point found in the Tribunal's legislative provisions on costs (s 87 of the SAT Act). The President had referred to these cases in his extempore costs ruling.

61            Notwithstanding the position acknowledged by their Honours that

'[an] application for leave itself must start from the premise that, as a matter of policy, appeals as to costs only are to be discouraged' (per Malcolm CJ in Garner v Rohanna Pty Ltd [1999] WASCA 178 at [15]), Martin CJ (Corboy J agreeing) went on to say in Questdale at [10], that these previous costs rulings in the area of compensation 'should not be followed by the Tribunal'.

1. The errors identified by the Chief Justice in Questdale at [8] - [10] were as follows:

   In each of Winterbourn and in this case [Questdale], the Tribunal appears to have treated the observations made by Barker J as giving rise to a presumption that a particular practice will be adopted in the exercise of the Tribunal's jurisdiction with respect to the determination of compensation for the resumption of land. The practice said to be expounded in these decisions is to award costs in favour of the land owner if the compensation awarded by the Tribunal exceeds the offer made by the resuming authority, whereas costs will be ordered in favour of the resuming authority if the compensation awarded by the Tribunal is less than the offer made.

   For the reasons given by Murphy JA, such an approach is not consistent with the provisions of s 87 of the SAT Act. Rather, s 87 requires the Tribunal to exercise the discretion which it confers taking into account all the circumstances of the particular case, including the nature of the jurisdiction which the Tribunal has been called upon to exercise, and any rules which have been promulgated by the Tribunal, but starting from the

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presumption that no order for costs will be made. In cases such as this, the fact that the jurisdiction arises from a unilateral decision by a resuming authority to expropriate the proprietary interests of a land owner will be material to the exercise of the discretion conferred by s 87 of the SAT Act. As Barker J observed in Clifford, a land owner who is ordered to pay the costs of the resuming authority in relation to proceedings in the Tribunal for the determination of the compensation to which the land owner is entitled will, by reason of such an order, be deprived of full compensation for the property which has been expropriated. Such a consequence could only be fair and reasonable if it is justified by conduct on the part of the land owner which is inappropriate or unreasonable, or which impedes the Tribunal in the achievement of the objectives to which reference is made in s 9 of the SAT Act.

With respect to Barker J, it cannot be concluded from the mere fact that the compensation determined by the Tribunal is less than that offered by the resuming authority that the land owner 'has maintained an unjustified proceeding and so should have to pay the respondent its costs for the trouble and expense of defending the claim'. Of course this is not to say that such a conclusion could not be drawn in a case in which the land owner maintained a claim for an amount of compensation which was greatly in excess of the amount ultimately determined by the Tribunal. However, to the extent that the reasons of Barker J suggest that any land owner who fails to 'beat the offer' made by a resuming authority should be ordered to pay the resuming authority's costs of the proceeding, in my respectful view such a suggestion is contrary to s 87 of the SAT Act, and should not be followed by the Tribunal. In this context it should be noted that the State Administrative Tribunal Rules 2004 (WA) promulgated by the Tribunal do not provide that a party who makes an offer more favourable to another party than the result achieved in the Tribunal is, by reason of that fact above, entitled to an order for costs. Rather the relevant rule [r 42] merely provides, perhaps superfluously, that the Tribunal must take such matters into account.

1. Murphy JA (Corboy J agreeing) said in Questdale at [61] - [62]:

   It follows ... that where, in proceedings of the present kind commenced by a landowner, a preliminary issue is raised for determination upon which the responsible authority succeeds, there remains no scope for the application of the rule in ordinary litigation that costs follow the event. Any question of costs in that circumstance would involve a consideration of the nature of the preliminary issue, [WAPC's] conduct, and all the circumstances of the particular case.

   The above observations are not intended to provide an exhaustive statement of the considerations which should, or may, or may not, be taken into account under s 87(2) of the SAT Act in proceedings commenced by a landowner in the Tribunal pursuant to s 188 of the PD Act. However, they are sufficient to indicate that it would be wrong to conclude that in the ordinary course the discretion should be exercised so as to require a

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landowner to pay the costs of the responsible authority if it does not establish a value in excess of an amount previously offered by the responsible authority. Insofar as the observations of Barker J in Clifford [at [55] - [56]] might suggest to the contrary, they should not, in my respectful view, be accepted.

64            Thus, the nature and effect of the proceedings (and the

reasonableness of each party's conduct) are matters to be taken into account under s 87 of the SAT Act without the need for establishing a presumptive rule in acquisition matters.

65            It is to be noted that this case is the 'reverse' of the type of case in

Questdale and envisaged in Clifford and Western Australian Planning Commission and Shim [2007] WASAT 262 (Shim). It is not an instance of a landowner being obliged to commence and maintain proceedings in the Tribunal in order to gain just compensation. The proceedings in this instance were instituted by WAPC in view of the failure by the landowners to institute proceedings for the determination of the appropriate quantum of compensation. The proceedings were ultimately withdrawn and now the landowners seek cost.

The submissions of the parties

1. It is common ground that:

a)	Subject to the Tribunal otherwise ordering, the Tribunal is generally a no-costs jurisdiction;
b)	The Tribunal has wide powers under its legislation regarding costs; and
c)	The exercise of the discretion in relation to the awarding of costs is based on the principle of fairness in all the circumstances of the case.

The landowners' position on costs

1)        The landowners seek an order that their costs in respect of the Tribunal proceedings be paid by WAPC. The costs claimed as per the filed itemised draft bill of costs are $22,744.60.

2)        The landowners' submissions may be summarised as follows:

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a)	The contentious nature of the legal issues warranted the incurring by the landowners of legal costs in the Tribunal proceedings.
b).	The landowners refer to the general principles set out in Clifford and Shim.

3)        As to what is fair in the circumstances of this case, the landowners submit as follows.

a)	In relation to three of the four lots, the landowners were ultimately successful in their argument that the Tribunal did not have jurisdiction.
b)	The final order in the Tribunal proceedings was a withdrawal of its application by WAPC on the basis that the parties have agreed the determination of appropriate compensation regarding Lot 49 (the sole remaining Tribunal matter after the appeals) may be dealt with by the Supreme Court in proceedings regarding the other three lots.
c)	That outcome is the same outcome that was offered to WAPC on many previous occasions by the landowners.
d).	Costs in relation to the Tribunal proceedings generally and the strikeout proceedings in particular were not in any material way exacerbated by the inclusion of Lot 49 given that the arguments for each of the four lots were identical.
e).	The landowners say that their position is that the Supreme Court has always been the appropriate jurisdiction for the determination of these matters.
d)	The Landowners say that costs should be awarded under r 42(2) of the State Administrative Rules 2004 (WA) (SAT Rules) (regarding offers made) as a matter of fairness. They say that the Tribunal proceedings were issued by the landowners on 23 May 2012. The jurisdiction issue was raised

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by the landowners as soon as the Tribunal proceedings were issued. In this regard, the landowners refer to their letter of 12 June 2012 and their subsequent letter of 24 October 2012 both offering to issue proceedings in the Supreme Court by 30 October 2012. They further say that the issue was raised by the landowners at the first Tribunal directions hearing on 15 June 2012 as is confirmed by the direction made on that day adjourning the directions hearing to allow, inter alia, 'the landowners to formulate a preliminary question for determination in relation

to the Tribunal’s jurisdiction'.

4)        The landowners refer to other proposals put to WAPC as follows:

a)	an open letter of 22 Jan 2013 including a Minute of Consent orders to transfer the proceedings to the Supreme Court and ordering that costs be cost in the cause; and
b)	an open letter of 5 February 2013 referencing 'the jurisdictional issue', attaching the strikeout application but containing the offer that 'our clients will not press for your clients to pay costs but will agree costs in the cause if your clients will now consent to this application without the need for further costs to be expended'.

5)        The landowners claim that by adopting an intransigent position in relation to the forum transfer question, WAPC has put the landowners to significant costs which could have been avoided; that WAPC has failed to establish any good reason for resisting the transfer; that in the circumstances it is fair that costs follow the outcome.

6).       The landowners claim further that it is appropriate that the principles which might lead to a determination of costs in the Supreme Court should be taken into account given their view that 'it is debatable that the costs recoverable in the Supreme Court would exceed those recoverable in SAT'. Although conceding that the

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discretion is wide, the landowners claim that this supports the argument that a successful party to any action of matter recover his costs.

7)        The landowners say their position 'from the beginning' was that the Tribunal's jurisdiction was not enlivened because no valid offer had been made. It refers to the submissions filed in 2013 in support of the strikeout application which appear to summarise such an argument made in this context: that, following the High Court's decision, the landowners' situation was dramatically altered given 'the fundamentally changed extent of the land taken and the newly arisen claims for damage sustained to the now remaining land as a consequence of the taking order as amended by the High Court's decision'. They claim 'the original claims [for compensation] have fallen away as a consequence of those radical and fundamental changes'. Those submissions also seek to put the argument that 'the Landowners have demonstrated consistently that they were engaged in the process of resolving the claims and

wished to progress the claims … in the Supreme Court'

8)        They say that there were small differences in the reasoning of the Court of Appeal for its decision as opposed to the arguments put to the Tribunal in the strikeout application but claim that these are not material for the purposes of determining costs. They concede that part of the reasoning of the Court of Appeal in remitting the Tribunal costs question back to the Tribunal was that 'there is a contentious issue as to the extent to which the propositions which ultimately found favour in the Court of Appeal were advanced in the course of proceedings before the Tribunal' and 'there is a contentious issues as to the scale of costs to be applied'.

9)        As to the appropriate scale of costs, the landowners submit that the substantial questions of law following on from the High Court's determination warrant costs being awarded on the Supreme Court scale. Nonetheless, the landowners claim costs calculated on the basis of the Tribunal Determination (from 1 January 2013) and prior to that rate, on the basis of the then-existing solicitor

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client agreement in place between the landowners and
their solicitors.

10)      No claim is made for work relating to the preparation of the substantive compensation claim, only for the defence of the Tribunal application and the jurisdictional argument and strikeout application.

WAPC's position on costs

67            The submission of WAPC is essentially that it was appropriate in all

the circumstances for it to bring on the application in view of the failure by the landowners to commence proceedings notwithstanding the existence of a clear dispute over the validity of the resumption itself (which went all the way to the High Court). The ultimate determinations at both the Court of Appeal and the High Court level were complex and resulted in part success only to the landowners. These complexities lead to a necessary 'rethink' of the compensation claim. More than two years elapsed and the parties were no further forward in resolving the dispute. It appears there was some correspondence along with much inaction/delay, some explained and some not. As at 23 May 2012, notwithstanding an extant dispute, there was in progress no mechanism to bring the dispute to finalisation to both parties and to obtain a just outcome for the landowners. That is the context in which WAPC says that it brought its application.

1. WAPC opposes the application for costs essentially on three bases:

1. WAPC seeks to distinguish this case from the 'usual compulsory acquisition case' in which, on the basis of Clifford and Shim the Tribunal might depart from the ordinary costs neutral position in the exercise of its discretion regarding costs.

WAPC claims that in the present case, the Tribunal proceedings did not progress to a substantive determination of the compensation to which the landowners are entitled under the LA Act and that the Tribunal is not therefore in a position to determine whether the landowners have received fair compensation from WAPC.

2.         WAPC claims that the point upon which the landowners successfully appealed was not directly raised before the

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Tribunal. WAPC claims that the landowners did not contend that the validity of the offers of compensation made by WAPC in 2004 were not valid offers for the purposes of s217 of the LA Act because they included in the case of Lots 7,8 and 30, an offer of compensation for land not taken validly. Rather, claims WAPC, the jurisdictional point argued before the Tribunal by the landowners was that the original claims for compensation made under s 211 had 'fallen away' by reason of the decision of the High Court.

3.         WAPC refers to the conduct of the landowners - that by their conduct in failing to respond in a timely way to settlement offers and in failing to institute proceedings in any forum, they have, in the words of McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 (Oshlack), 'by its lax conduct effectively invit[ed] the litigation' and further, that by their delay in bringing the strikeout application and in articulating the legal basis for their jurisdictional objection, they have 'unnecessarily protract[ed] the proceedings'. WAPC says that in these circumstances there is no justification for the landowners to be awarded their costs for the Tribunal proceedings.

69            Referring to Branson J in Franks v Warringah Council [2003] FCA 1254 at [7] (Franks), WAPC's fourth submission is that the previous letters from the landowners that have been referred to, do not constitute settlement offers for the purposes of r 42 of the SAT Rules on the basis that they do no more than invite WAPC to concede the landowners' application regarding the Tribunal proceedings but do not offer any compromise in the landowners' position or make any proposals to settle the underlying dispute between the parties.

70            If that proposition is not accepted, WAPC submits that the existence

of any offer is only a factor to be considered along with the other factors enunciated by the Tribunal in Ampezzo Pty Ltd and Franken [2009] WASAT 109 at [38].

71            Finally, WAPC submits that in the particular circumstances of this

case, it cannot be said that WAPC's refusal of the landowners' proposal to change forums was unreasonable and that therefore its rejection of the purported offers should not have any bearing on the question of costs.

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Consideration of the factors relevant to the exercise of the discretion

General

72            The Tribunal is primarily a costs neutral jurisdiction and, as such, the

starting point in the exercise of the discretion to award costs is that each
party should bear their own costs.

73            As was said in Questdale, where a preliminary issue is raised for determination, there is no scope for the application of the rule in ordinary litigation that costs follow the event. Any question of costs in that circumstance would involve a consideration of the nature of the preliminary issue, the conduct of the parties and all of the circumstances of the particular case. The circumstances of the case include consideration of the nature of the jurisdiction. The rules of the Tribunal concerning offers of settlement and their relevance to costs must also be considered. The starting point, however, remains the broad principle that the Tribunal is a costs neutral jurisdiction.

Nature of the jurisdiction

74            The jurisdiction invoked in the application made to the Tribunal

arises from the unilateral decision by a resuming authority to expropriate the interests of a landholder. The comments made by Barker J in Clifford and Shim and other such cases regarding the effect that the imposition of legal costs has in depriving a landowner of full compensation for the property which has been unilaterally expropriated are relevant and the circumstances giving rise to the claim will be a factor material to the exercise of the discretion conferred by s 87 of the SAT Act.

75            In this instance, it is not a question of the landowner being liable for

the costs of the resuming authority, but rather of the landowners seeking to be relieved, by compensatory order, of the costs that they have had to incur in achieving just compensation for the resumption. In the view of the Tribunal, the comments of Barker J apply equally whether one is talking about a deprivation by reason of the imposition of a costs order in favour of the other side to the litigation or a deprivation by reason of the need in the landowner to expend money on legal costs to achieve just compensation for the resumption.

Outcome

76            The landowners could be said to have been largely successful in the

outcome before the Tribunal. In relation to three of the four lots, they were ultimately successful in their argument that the Tribunal did not have

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jurisdiction. They were unsuccessful in relation to one lot where jurisdiction was established. WAPC subsequently agreed not to proceed in the Tribunal in relation to that one lot. However, it is still necessary to consider the conduct of the landowners leading up to that ultimate withdrawal of the remaining claim by WAPC.

Conduct prior to the Tribunal application

77            The withdrawal of the proceedings by WAPC does not carry with it

an automatic right to cost for the landowners. There has been no substantive hearing of the merits of the application by the Tribunal. In the absence of evidence and submissions following a substantive hearing, the strength or weakness of the parties' claim in this proceeding cannot be determined by the Tribunal. On the face of it, the subject of the proceeding (the appropriate amount of compensation to be paid to the landowners) comprised a genuine dispute. The landowners' submissions tend to suggest that the application to the Tribunal was wholly without foundation and merit. The Tribunal is not in a position to accept that proposition without the benefit of argument and evidence concerning the substantive issues. The fact that WAPC has withdrawn its claim does not of itself suggest a concession that its claim was wholly without foundation or that the dispute was not a genuine dispute: Questdale. The Tribunal can draw no inference from the fact that WAPC has withdrawn its proceeding against the landowners.

78            There is no evidence that any of the conduct by WAPC was

unreasonable in the sense described in the authorities referred to above. In the Tribunal's view, there is no evidence of any factors that would warrant the Tribunal exercising the discretion conferred on it by s 87(2) of the SAT Act. That is, there is no evidence before the Tribunal that WAPC's conduct in the proceeding impaired the Tribunal's ability to attain the objectives referred to in s 9 of the SAT Act.

79            In the view of the Tribunal, it is appropriate to view the actions of

WAPC as responsive to the inaction of the landowners. The question of the latter's delay requires examination.

80            As was observed by Chaney J in the strikeout decision

Graham [2013] at [15]) 'Obviously the history of litigation has significantly contributed to the substantial delay in progressing the resolution of the [landowners'] entitlements to compensation'.

81            There is no suggestion that it was not entirely proper for the

landowners whose land has been compulsorily acquired to have the

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opportunity for legal advice and to challenge the validity of the compulsory acquisition as they did. However, once the validity questions had been finally determined, there was an obligation on the landowners to prosecute their claim for compensation for that portion of land validly acquired in an appropriately timely way.

82            The landowners at no relevant time commenced substantive

proceedings in any forum for the determination of compensation. Following the February 2010 High Court decision on validity of the Taking Order, the next significant event in the journey towards the determining of the compensation quantum was the making by WAPC 10 months later, in December 2010, of the open offer to settle the claim, which offer was not taken up.

83            Another 10 months went by. No counter offer was received, so in

October 2011, WAPC gave notice under s 222 of the LA Act of its intention to start proceedings in the Tribunal. It agreed to hold off that action for a further five months at the request of the landowners. By the expiration of the sixth month, there having still been no response to the offer and no compensation proceedings started in any forum by the landowners, WAPC gave notice of its intention to lodge the Tribunal application. At that point by letter, the landowners gave notice of the Supreme Court as their preferred forum for the assessment of compensation.

84            It is accepted that the first named landowners had some health issues

(although little specific detail is available) and it is accepted that the landowners required substantial advice of an expert nature regarding their complex compensation claim following the High Court decision. However, the Tribunal is of the view that these matters do not satisfactorily explain the delay by the landowners in prosecuting their claim for compensation in a timely way from the time of the High Court's decision. In the view of the Tribunal, given that some 2¼ years had elapsed from the High Court decision and that some eight years had elapsed from the time the advance payments were made to the landowners, it was reasonable for WAPC to institute proceedings (in the only forum in which it could commence proceedings) in an endeavour to bring the matter to some sort of resolution. The Tribunal does not accept that such action by WAPC is properly categorised as WAPC attempting 'to force the issue' by issuing proceedings 'before the landowners were in a position to know whether the litigation was financially justified' as was submitted by the landowners. Nor does the Tribunal accept that WAPC was under any sort of obligation to accede to the 'preference' of the

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landowners in the choice of forum. WAPC's submissions in relation to the question of delay are accepted. It is urged on the Tribunal by submission that the landowners at all times intended the question of quantum of compensation to be determined in the Supreme Court. There is insufficient evidence before the Tribunal for it to find as a matter of fact that this was indeed always the case nor that it was reasonable, without more, to expect or to require WAPC to await the instigation of such proceedings by the landowners in their own time.

Delay once in the Tribunal – 'offers'

85            The Tribunal proceedings (excluding the disposition of the costs

application) lasted from 23 May 2012 to 22 June 2015 that is a little over three years. Following the initial directions hearing in June 2012, six months elapsed before the strikeout application was made by the landowners. This is despite the raising by the landowners of a jurisdictional issue immediately prior to, and then at, the first directions hearing on 15 June 2012. The matter was adjourned to a further directions hearing in late October 2012 in order that, inter alia, the landowners formulate a preliminary question for determination in relation to the Tribunal's jurisdiction. It was not until February 2013 that a strikeout application was filed. Even then, the alleged jurisdictional issue and preliminary question was not clearly articulated in the application. Through March and April 2013, the programming orders were complied with by the parties clarifying the points of arguments.

1. It is accepted that by at least three letters (June 2012, October 2012 and January 2013) the landowners put proposals to WAPC that it agreed to the transfer of the proceedings to the Supreme Court. There is no material before the Tribunal which illustrates a clear explanation being given by the landowners to WAPC as to the legal basis for its 'jurisdictional point' (as opposed to the mere preference of the landowners). In the view of the Tribunal, these letters do not constitute 'settlement offers' which carry the costs consequences set out in the SAT rules. WAPC submissions in this regard are accepted. The letters did not, by reference to legal principle and authority, demonstrate why WAPC's opposition to the application under s 50 of the SAT Act would be pointless, or indeed explain why the Tribunal lacked jurisdiction to deal with the matter. The letters merely invited WAPC to concede the landowners' application to dismiss the Tribunal proceedings and did not offer any compromise in the landowners' position generally, and this on the factual background of inaction by the landowners described above. In the view of the Tribunal, the rejection by WAPC of these 'invitations' by

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the landowners cannot, in all the circumstances, be regarded as

unreasonable.

The jurisdictional point

87            The strikeout application was initially unsuccessful. The

jurisdictional points argued before Chaney J by the landowners were
rejected.

88            It appears to the Tribunal from the decisions delivered in

Graham 2013 and Graham 2014 that the arguments run by the landowners in the Tribunal as to the jurisdictional point and the arguments run by them on appeal in the Supreme Court were not the same. It is not possible to say what the consequences may have been in terms of the future of the litigation if the arguments run in the Supreme Court on appeal had in fact been run in the interim argument in the Tribunal before the Chaney J. This is a further factor that is relevant to the exercise of discretion regarding whether they should have their costs. The Tribunal rejects the landowners' submission that the differences expressed in the reasons of the two courts are small' and 'not material'.

Findings

89            In the view of the Tribunal, the 'usual order as to costs' in curial

litigation, under which the successful party is prima facie entitled to his or her costs, has no application in the context of the proceedings before the Tribunal, namely interim proceedings up to and including the strikeout application. In the present case, the principal consideration is the extent to which the applicant for costs can establish that the other party's conduct impaired the attainment of the objectives set out in s 9 of the SAT act.

90            In this case, there is nothing in the conduct of WAPC which has

impaired the attainment of those objectives. To the contrary, the conduct of the landowners, particularly in relation to delay, is a factor weighing significantly against the award of costs to the landowners.

91            The Tribunal agrees with the submission of WAPC that it acted

reasonably in seeking to bring the dispute to a conclusion before the Tribunal in circumstances where the landowners had failed to provide any substantive response to its open offer of settlement dated 30 December 2010 and had not instituted proceedings in any other forum as at 23 May 2012.

1. The Tribunal is not satisfied that any order for costs should be made against WAPC in all the circumstances

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Conclusion

93            That being the case, the Tribunal refuses the landowners application

for an order for costs against WAPC in the sum claimed or in any sum at
all.

Order

In accordance with s 87(1) of the SAT Act, the Tribunal orders:

1.        The Respondents' application for an order that the Applicant pay the Respondents' the costs of the proceeding is refused.

2.        Each party shall bear their own costs of the proceeding.

I certify that this and the preceding [93] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS H LESLIE, MEMBER