WESTERN AUSTRALIAN PLANNING COMMISSION and SCUTTI
[2019] WASAT 99
•28 OCTOBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WESTERN AUSTRALIAN PLANNING COMMISSION and SCUTTI [2019] WASAT 99
MEMBER: JUDGE D PARRY, DEPUTY PRESIDENT
HEARD: 21 MAY 2019 - FURTHER DOCUMENTS FILED ON 30 MAY 2019 AND FURTHER SUBMISSIONS FILED ON 4 JUNE 2019 AND 11 JUNE 2019
DELIVERED : 28 OCTOBER 2019
FILE NO/S: DR 428 of 2015
BETWEEN: WESTERN AUSTRALIAN PLANNING COMMISSION
Applicant
AND
CARMELA SCUTTI
First Respondent
ANTONIO GIUSEPPE SCUTTI
Second Respondent
PAOLA SCUTTI
Third Respondent
GIUSEPPE ALESSANDRO SCUTTI
Fourth Respondent
Catchwords:
Practice and procedure - Costs - Land valuation proceedings - Western Australian Planning Commission commenced proceedings under s 188(3) of the Planning and Development Act 2005 (WA) for determination by Tribunal of value of part of landowners' land injuriously affected by reservation for public purpose ('Primary Regional Roads') under Metropolitan Region Scheme which Western Australian Planning Commission elected to acquire instead of paying compensation for injurious affection - Valuation date for SAT proceedings is date on which Western Australian Planning Commission elected to acquire reserved land instead of paying compensation for injurious affection - Commissioner of Main Roads and landowners subsequently entered into agreements under s 168 of the Land Administration Act 1997 (WA) for acquisition by Commissioner of Main Roads of whole of landowners' land requiring Commissioner to pay compensation in accordance with the Land Administration Act 1997 (WA), with valuation date being date of s 168 agreements - SAT proceedings withdrawn by Western Australian Planning Commission (subject to determination of landowners' application for costs), because proceedings rendered unnecessary and without purpose - Whether Tribunal has power to make costs order for expenses incurred by landowners in relation to development application, refusal of which was 'triggering event' for landowners' claim for compensation for injurious affection, making claim for compensation and valuation of reserved land prior to commencement of proceedings - Exercise of discretion - Whether it is fair and reasonable that landowners be reimbursed by Western Australian Planning Commission for costs of proceedings, including expenses resulting from the matter because of which proceedings were brought - Whether Western Australian Planning Commission's conduct in connection with proceedings impaired attainment of Tribunal's objectives - Whether Western Australian Planning Commission acted unreasonably in commencing and in conducting proceedings - Whether Western Australian Planning Commission (and Commissioner of Main Roads) made decision to compulsorily acquire whole of landowners' land thereby creating new valuation date and rendering all expenses incurred by landowners in relation to claim for injurious affection and valuation as at date on which Western Australian Planning Commission elected to acquire reserved land 'useless'
Legislation:
City of Wanneroo District Planning Scheme No. 2
Land Administration Act 1997 (WA), s 168, s 168(1), s 168(1)(a), s 168(1)(b), s 169, s 169(1), s 241, s 241(2), s 241(2)(b), s 241(2)(c), Pt 10
Legal Profession Act 2008 (WA), s 275
Main Roads Act 1930 (WA), s 9, s 16, s 29(1)(b)
Metropolitan Region Scheme, cl 5, cl 12(1), cl 23(1), cl 23(2), cl 28
Planning and Development Act 2005 (WA), s 7, s 77(1)(b)(i), s 173(1), s 174(1)(a), s 176(1), s 177(1), s 177(1)(a)(ii), s 178(1)(a), s 178(1)(a)(ii), s 187, s 187(1), s 187(3), s 188, s 188(1)(a), s 188(2)(a), s 188(2)(b), s 188(2)(c), s 188(3), s 188(3)(b)
State Administrative Tribunal Act 2004 (WA), s 9, s 46(1), s 50, s 87, s 87(1), s 87(2), s 87(3), s 87(4), s 89
Result:
Costs application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Ms LJ Dias and Ms M Payne |
| First Respondent | : | Ms LE Rowley |
| Second Respondent | : | Ms LE Rowley |
| Third Respondent | : | Ms LE Rowley |
| Fourth Respondent | : | Ms LE Rowley |
Solicitors:
| Applicant | : | State Solicitor's Office |
| First Respondent | : | Rowley Legal |
| Second Respondent | : | Rowley Legal |
| Third Respondent | : | Rowley Legal |
| Fourth Respondent | : | Rowley Legal |
Case(s) referred to in decision(s):
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR (WA) 194
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Medical Board of Australia and Costley [2013] WASAT 2; (2013) 83 SR (WA) 1
Medical Board of Australia and Woollard [2012] WASAT 209 (S); (2012) 82 SR (WA) 377
Moftah and APG Homes Pty Ltd [2013] WASAT 23; (2013) 84 SR (WA) 131
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302; (2008) 60 SR (WA) 194
Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; (2018) 232 LGERA 395
Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81
Winterbourn and Western Australian Planning Commission [2013] WASAT 72
TABLE OF CONTENTS
Introduction
Factual background
Scuttis' draft bill of costs
Legal framework and principles
Issues for determination
Does the Tribunal have power to make a costs order for expenses incurred prior to the commencement of these proceedings in relation to the grouped dwellings development application, the claim for compensation for injurious affection and the valuation of the reserved land?
Should the Tribunal's discretion as to costs be exercised to make an order for the payment by the Commission of all or any of the costs of the Scuttis?
What amount of costs should be fixed or assessed?
Conclusion
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Carmela Scutti, Antonio Giuseppe Scutti, Paola Scutti and Giuseppe Alessandro Scutti (the Scuttis) seek an order of the Tribunal, under s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), for the payment by the Western Australian Planning Commission (Commission) of their costs of these proceedings, including amounts to compensate them for 'expenses … resulting from … the matter because of which the proceeding was brought'.[1] The amount of costs sought by the Scuttis from the Commission is $162,418.37.[2]
[1] Section 87(3) of the State Administrative Tribunal Act 2004 (WA).
[2] Respondents' draft bill of costs (Annexure 'LER 1' to affidavit of Linda Elizabeth Rowley sworn on 18 January 2019 (Exhibit 3) page 6).
The Scuttis were the registered proprietors of Lot 1 on Diagram 107998, which was known as Lot 1 (No. 614) Wanneroo Road, Pearsall, (Lot 1), and Carmela Scutti was the registered proprietor of Lot 8 on Diagram 83055, which was known as Lot 8 (No. 590) Wanneroo Road, Pearsall, (Lot 8).[3] Lot 1 and Lot 8 adjoin one another and are located at the north-eastern corner of the intersection of Wanneroo Road and Ocean Reef Road, in the suburb of Pearsall, within the local government area of the City of Wanneroo (City or Council).[4]
[3] Agreed statement of facts (Exhibit 1) [5].
[4] Agreed statement of facts (Exhibit 1) [2]-[3].
Under s 174(1)(a) of the Planning and Development Act 2005 (WA) (PD Act), 'land is injuriously affected by reason of the making or amendment of a planning scheme if … that land is reserved … under the planning scheme for a public purpose'. Part of Lot 1 and part of Lot 8 is reserved for a public purpose, namely 'Primary Regional Roads', under the Metropolitan Region Scheme (MRS) (reserved land) and is therefore 'injuriously affected' under s 174(1)(a) of the PD Act.[5] Consequently, under s 173(1) of the PD Act, the Scuttis were 'entitled to obtain compensation in respect of the injurious affection from the responsible authority'. Under cl 5 of the MRS, the 'responsible authority' is the Commission. However, under s 177(1) and s 178(1)(a) of the PD Act, the Scuttis could only make a claim for compensation for injurious affection if and when the reserved land is first sold following the date of the reservation, or a development application for approval of development under the MRS on the reserved land is refused or granted subject to conditions that are unacceptable to the applicant. This is commonly referred to as the 'triggering event' for a claim for compensation for injurious affection under the PD Act.
[5] Agreed statement of facts (Exhibit 1) [5].
The Scuttis lodged a development application, under cl 28 of the MRS, with the City, seeking approval for the construction of 20 Grouped Dwellings on Lots 1 and 8 (grouped dwellings development application). The grouped dwellings development application was refused by the Metro North-West Joint Development Assessment Panel (JDAP), in part, on the basis that the proposed development was inconsistent with, and contrary to, the objectives of the Primary Regional Roads reservation under the MRS, and would significantly compromise the availability of the land for future road works.[6]
[6] Agreed statement of facts (Exhibit 1) [9]-[10].
On the basis of the 'triggering event' of the refusal of the grouped dwellings development application, the Scuttis made a claim for compensation for injurious affection against the Commission.[7] The Commission accepted the Scuttis' claim for compensation for injurious affection, but elected, under s 187(1) of the PD Act, 'to acquire the land so [injuriously] affected instead of paying compensation [for injurious affection]'.[8] Under s 187(3) of the PD Act, where the responsible authority elects to acquire land instead of paying compensation for injurious affection, and the responsible authority and the owner of the land are unable to agree as to the price to be paid for the land, 'the price at which the land may be acquired by the responsible authority is to be the value of the land as determined in accordance with [s] 188'. Section 188 of the PD Act states as follows:
[7] Agreed statement of facts (Exhibit 1) [9]-[10].
[8] Agreed statement of facts (Exhibit 1) [12]-[14].
(1)The value of the land referred to in section 187(3) is to be —
(a)the value of the land on the date the responsible authority elects to acquire the land under that section; and
(b)determined without regard to any increase or decrease, if any, in value attributable wholly or in part to the planning scheme.
(2)Subject to subsection (4), the value of the land referred to in section 187(3) is to be determined —
(a)by arbitration in accordance with the Commercial Arbitration Act 2012; or
(b)by the State Administrative Tribunal on the owner of the land applying to it for a determination of that value; or
(c)by some other method agreed upon by the responsible authority and the owner of the land.
(3)If arbitration has not commenced under subsection (2)(a), an application has not been made under subsection (2)(b), and no method has been agreed under subsection (2)(c), within 12 months of the date on which the responsible authority elected to acquire the land, the responsible authority may —
(a)refer the matter for determination by arbitration in accordance with the Commercial Arbitration Act 2012; or
(b)apply to the State Administrative Tribunal for a determination of that value,
and the value determined under this subsection is to be the value of the land for the purposes of section 187.
(4)Where a dispute is referred for determination under subsection (3)(a) there is to be taken to be, for the purposes of the Commercial Arbitration Act 2012, an arbitration agreement to refer the dispute, and the parties to the agreement are to be taken to be the owner of the land and the responsible authority.
As the Commission and the Scuttis were unable to agree as to the price to be paid for the reserved land, and as, within 12 months of the date on which the Commission elected to acquire the reserved land:
•an arbitration had not commenced under s 188(2)(a) of the PD Act;
•an application had not been made by the Scuttis for the Tribunal to determine the value of the reserved land under s 188(2)(b) of the PD Act; and
•no other method to determine the value of the reserved land had been agreed by the Commission and the Scuttis under s 188(2)(c) of the PD Act,
the Commission was authorised, by s 188(3) of the PD Act, to either:
•refer the matter for determination by arbitration in accordance with the Commercial Arbitration Act 2012 (WA) (CA Act) under s 188(3)(a) of the PD Act; or
•apply to the Tribunal for a determination of the value of the reserved land under s 188(3)(b) of the PD Act.
The Commission commenced these proceedings, under s 188(3)(b) of the PD Act, for a determination by the Tribunal of the value of the reserved land for the purposes of s 187 of the PD Act. However, for reasons set out in the parties' agreed statement of facts reproduced at [8] below, the Tribunal was ultimately not called upon to determine the value of the reserved land. Indeed, as indicated below, after the initial directions hearing, and the preparation and filing of an application by the Scuttis for an order striking out the proceedings under s 50 of the SAT Act, on the basis that the matter would be more appropriately dealt with by arbitration under the CA Act, the proceedings were periodically adjourned, by consent of the parties, until 14 November 2018, when the Commission sought, and the Tribunal granted, leave to withdraw the proceedings under s 46(1) of the SAT Act, and the proceedings were withdrawn, 'save as to the [Scuttis'] application for the payment of their costs of the proceeding by the [Commission]'.
Factual background
In accordance with an order made on 14 November 2018, the parties filed the following agreed statement of facts for the purposes of the determination of the costs application (agreed facts):[9]
[9] Agreed statement of facts (Exhibit 1) (original emphasis; references to agreed bundle of documents (Exhibit 2) omitted).
Background
1.The [Commission] was at all material times, and is, a statutory body corporate established under the Planning and Development Act 2005 [(WA)](PD Act), with functions and powers under that Act.
2.The [Scuttis] were at all material times the registered proprietors of [L]ot 1 on Diagram 107998, known as [L]ot 1 ([No.] 614) Wanneroo Road, Pearsall, WA, contained in Certificate of Title Volume 1765 Folio 911 (Lot 1) based on a 20% share, 35% share, 20% share and 25% share respectively.
3.[Carmela Scutti] was at all material times the registered proprietor of Lot 8 on Diagram 83055, known as [L]ot 8 ([No.] 590) Wanneroo Road, Pearsall, WA contained in Certificate of Title Volume 1946 Folio 866 (Lot 8).
4.Lots 1 and 8 are located on the corner of Wanneroo Road and Ocean Reef Road. Both roads are Primary Regional Roads which means, inter alia, that the provisions of the Main Roads Act 1930 [(WA)] apply.
5.Portions of Lots 1 and 8 are reserved for the public purpose, [namely] Primary Regional Road[s] in the Metropolitan Region Scheme (MRS) and the local planning scheme (Reserved Land). The remaining portions of Lots 1 and 8 are zoned Urban in the MRS, and Urban Development under the City of Wanneroo District Planning Scheme No[.] 2 (DPS2), and classified as 'Public Open Space' under Agreed Local Structure Plan East Wanneroo Cell 4 (Hocking and Pearsall): Structure Plan No 6 (ASP 6) (Classified POS Land). The Classified POS Land is treated as if it were a Local Reserve for the purposes of DPS 2: Scutti and Others v City of Wanneroo [2018] WASCA 175[;] [(2018) 53 WAR 417;] (2018) 232 LGERA 395 ('Scutti WASCA') at [125] points 6, 7, 9 and 10.
6.In Scutti WASCA, the Court made final orders following the delivery of its reasons which included an order in the following terms:
' that: (a) the [Scuttis'] land was injuriously affected by reason of the making of DPS2 in that the land was reserved under DPS2 for a public purpose within [the meaning of] s 174(1)(a) of the Planning and Development Act 2005'.
7.By development application received by the City of Wanneroo (City) on 19 April 2013, the [Scuttis] applied to construct a rural shed on Lots 1 and 8 (April 2013 Development Application).
8.On 4 July 2013, the City refused to approve the April 2013 Development Application on the basis that:
'(i)The City considers that the proposed shed addition to the above property would constitute an intensification of a 'Rural Use' in an area zoned 'Residential' which may have an adverse impact on the surrounding locality.
(ii)The proposal does not meet the objectives of the 'Residential Precinct' as outlined in [cl] 4.1 of [ASP 6] as approval of the proposed shed will compromise the development of the precinct for residential purposes in the medium and long term.
(iii)Approval of the proposed shed will prejudice the future planned use of the site. In this case being for public open space, contrary to [cl] 4.1(c) of ASP6.'
9.By application dated 3 December 2013, the [Scuttis] applied for planning approval in relation to the whole of Lots 1 and 8 to develop 20 grouped dwellings (December 2013 Development Application) under the PD Act. The Development Application was lodged with the City as required by [cl] 28 of the MRS.
10.On 25 March 2014, the Metro North-West Joint Development Assessment Panel refused the December 2013 Development Application on the basis that the proposal was inconsistent with and contrary to:
(i)[cl] 6 and [Sch] 3 of ASP 6 as the ability for the provision of Public Open Space would be compromised;
(ii)the objectives of the 'Primary Regional Road' reservation for which the land is reserved under the MRS, and would significantly compromise the availability of the land for future road works.
11.Reason (i) was relevant to the Classified POS Land and reason (ii) was relevant to the Reserved Land.
12.On 3 April 2014, the [Scuttis] lodged a joint claim for compensation for injurious affection in respect of Lots 1 and 8 with both the City (in relation to the Classified POS) and the [Commission] (in relation to the Reserved Land).
13.By letter dated 14 May 2014, the [Commission] acknowledged receipt of the claim for compensation for injurious affection.
14.On 25 June 2014, in lieu of paying injurious affection compensation, the [Commission] elected to purchase the Reserved Land, pursuant to s 187(1) of the PD Act and informed the [Scuttis] by letter dated 3 July 2014.
15.By letter dated 3 July 2014, the City's solicitors informed the [Scuttis'] solicitor that the City had elected not to acquire the POS.
16.On 9 September 2014, the [Commission] made offers of an acquisition price in respect of the Reserved Land.
17.The parties were unable to reach agreement on value. In particular:
a)on 3 March 2015 the [Commission] enquired as to progress;
b)on 27 July 2015 the [Scuttis] wrote to the [Commission] making a counter[-]offer; and
c)by letter dated 11 September 2015 the [Commission] refused the counter[-]offer.
18.By letter dated 29 September 2015, the [Scuttis] gave the [Commission] 30 days' notice of their intention to commence proceedings in the Supreme Court.
19.By email dated 20 November 2015 to the representatives of the [Commission] and City, the [Scuttis'] solicitor proposed arbitration in relation to the claims, as 'we have a combination of an election to purchase and injurious affection.'
Tribunal proceedings
20.By email dated 26 November 2015 sent at 12.02pm to the [Scuttis'] solicitor, the [Commission's] solicitor advised that the [Commission] did not wish to have the purchase price of the Reserved Land determined by arbitration and that she was instructed to make an application in the State Administrative Tribunal (Tribunal).
21.At 2.51pm the [Scuttis'] solicitor replied by email on the same date asking why the [Commission] objected to arbitration.
22.On the same date, the [Commission] applied to the Tribunal, pursuant to s 188(3)(b) of the PD Act, for a determination of the value of the Reserved Land, which the [Commission] elected to acquire under s 187 (DR 428/2015). The application was served on the [Scuttis'] [solicitor] by email at 4.40pm. In that email, the [Commission's] solicitor informed the [Scuttis'] [solicitor] that the reason for taking this course of action, including that:
(i)the City did not concede that the Classified POS Land was injuriously affected by the local planning scheme;
(ii)there was no basis for contemplating a proceeding that would involve the [Commission] and the City being parties to a single arbitration on the basis of a joint injurious affection claim;
(iii)the [Commission] had accepted that the Reserved Land was injuriously affected and had elected to purchase that land; and
(iv)more than 12 months had elapsed since the [Commission's] election to purchase and the [Commission] was entitled to commence proceedings to resolve the matter.
23.By letter dated 27 November 2015 the [Scuttis'] solicitor wrote to the [Commission's] solicitor inviting the [Commission] to withdraw the Tribunal proceedings and foreshadowing a strike[]out application and an application for costs with respect to DR 428/2015.
24.By letter dated 2 December 2015, the [Commission's] solicitor advised the [Scuttis'] solicitor that the strike[-]out application would be opposed.
25.By letter dated 2 December 2015, the [Scuttis'] solicitor advised the [Commission's] solicitor that a strike-out application pursuant to s 50 was now being issued and[,] on 3 December 2015, the [Scuttis] filed an application in the Tribunal to strike out the [Commission's] claim pursuant to s 50(1) of the State Administrative Tribunal Act 2004 (s 50 application).
26.At the first directions hearing in the Tribunal on 11 December 2015, the Tribunal listed the s 50 application for hearing on 25 February 2016 and ordered the preparation of affidavit evidence and submissions.
27.The parties each filed affidavits in support of and against the s 50 application respectively.
28.By Originating Motion filed on 16 December 2015, the [Scuttis] applied to the Supreme Court for the appointment of an arbitrator under the Commercial Arbitration Act 2012 (WA) (ARB 8/2015).
29.On 22 December 2015, the City applied to the Tribunal pursuant to s 176(1) of the PD Act seeking a determination as to whether the Classified POS Land was injuriously affected by operation of the DPS2 (DR 470 of 2015).
30.In January 2016 the solicitors for the City and [the Scuttis] corresponded on the question of listing together the two sets of Tribunal proceedings (DR 470/2015 and DR 428/2015), which the City opposed. The [Commission] also opposed that course of action.
31.At the directions hearing in DR 470/[2015] on 22 January 2016, the Tribunal vacated the hearing of the s 50 application on 25 February 2016 and ordered 'in lieu thereof the Tribunal is to consider on that day the [[Scuttis'] application in DR 470/[2015]] in connection with proceeding DR 428/2015'. The Tribunal also ordered all parties to file and serve a 'summary of their application in the form of points for discussion'. The hearing was subsequently relisted on 26 February 2016.
32.Subsequently the City, the [Commission] and the [Scuttis] respectively prepared and filed points for discussion for the hearing on 26 February 2016 in DR 470/[2015].
33.In the [Scuttis'] Points for Discussion document filed on 8 February 2016 in DR 470/2015, the [Scuttis] sought programming orders for a hearing in DR 470/2015 (paragraph 15) and sought that DR 428/2015 'be suspended in its entirety until DR 470/2015 is finally resolved' (paragraph 16).
34.After hearing from the parties on 26 February 2016, the Deputy President of the Tribunal ordered that DR 428/[2015] is 'adjourned to a further directions hearing at 10.00am on 29 July 2016, in order to list the application for a strike out of the proceeding under s 50 of the State Administrative Tribunal Act 2004 (WA) if pressed, and otherwise to list for final hearing.'
35.By the parties' agreement and request, the Tribunal subsequently further adjourned DR 428/2015 administratively by orders dated 25 July 2016, 8 September 2016, 28 March 2017, and 21 November 2017.
36.ARB 8/2015 was adjourned pending the outcome of the proceedings relating to DR 470 of 2015, and was ultimately withdrawn on 2 November 2018 with no order as to costs.
37.The Tribunal delivered its reasons in DR 470/2015 on 23 August 2016 (City of Wanneroo [and] Scutti and others [sic] [2016] WASAT 102). Appeal proceedings in the Supreme Court subsequently ensued: Scutti and Others v City of Wanneroo [2017] WASC 70[;] (2017) LGERA 144 (heard on 17 January, delivered on 21 March 2017) and Scutti WASCA (heard on 19 April 2018 and delivered on 12 October 2018).
38.In January 2018 the Commissioner [of] Main Roads approached the [Scuttis] with regard to a proposal to resume the whole of [L]ots 1 & 8 by way of either a s 168 agreement to take or a taking on an involuntary basis under the Land Administration Act 1997 [(WA)]. The resumption proceeded by way of s 168 agreement which required a taking order to be registered.
39.On 9 August 2018, a taking order was registered at Landgate by the Commissioner [of] Main Roads for the whole of Lots 1 and 8 for the purpose of 'Wanneroo Road and Ocean Reef Road interchange' rendering the proceedings in DR 428/2015 of no utility to either party.
40.The parties have taken no further steps in relation to DR 428/2015 pending resolution of the appeals in respect of DR 470/2015, other than to agree [to] adjournments of the directions hearing, and then to bring DR 428/2015 to an end by agreement pursuant to orders made on [14] November 2018, subject to resolution of the [Scuttis'] claim for costs.
Further to [5] of the agreed facts, the location, and reservation and zoning under the MRS, of Lots 1 and 8 is shown on the map reproduced below:[10]
[10] Annexure 'LER 2' to the affidavit of Linda Elizabeth Rowley sworn on 18 January 2019 (Exhibit 3) page 100. The word 'Metropolitan' is misspelt in the title of the map.
As can be seen on the map reproduced immediately above, Lot 1 is the smaller of the two lots, has a regular, rectangular shape, and has frontage (only) to Wanneroo Road to the west, whereas Lot 8, which is the larger lot, has a less regular shape, owing to the location of Lot 1 to its north-west, an apparent truncation at its south-western corner, and the alignment of Ocean Reef Road to the south, and has frontages to both Wanneroo Road and Ocean Reef Road. As is also apparent from the map, the southern approximately two-thirds of Lot 8 and a triangular-shaped slither along the western boundary of Lot 1 is coloured red, meaning (as stated in the legend) that it is reserved for 'Primary Regional Roads' (under cl 12(1) and Table 1 in cl 12(2) of the MRS),[11] and the northeastern part of Lot 8 and the whole of Lot 1 (other than the triangular-shaped slither along its western boundary) is coloured red-brown,[12] meaning (as also stated in the legend) that it is zoned 'Urban' (under cl 23(1) and Table 2 in cl 23(2) of the MRS).[13]
[11] This land is referred to in these reasons as the 'reserved land'.
[12] The land coloured red-brown under cl 23(2) of the MRS appears orange in the map reproduced at [9].
[13] The land coloured red-brown under cl 23(2) of the MRS appears orange in the map reproduced at [9].
As indicated at [5] of the agreed facts, the parts of Lots 1 and 8 which are zoned 'Urban' under the MRS (and which are coloured redbrown[14] on the map reproduced at [9] above) are zoned 'Urban Development' under the City of Wanneroo District Planning Scheme No. 2 (DPS 2) and are classified as 'Public Open Space' under Agreed Local Structure Plan East Wanneroo Cell 4 (Hocking and Pearsall): Structure Plan No 6 (ASP 6) (classified POS land). As also indicated at [5] of the agreed facts, the Court of Appeal (Buss P, Murphy JA and Allanson J) determined in Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; (2018) 232 LGERA 395 at [125 6, 7, 9 and 10] that the classified POS land is treated as if it were a 'reserve', being a 'Local Reserve', within the meaning of ASP 6, and, hence, as if that land 'is classified as if it was correspondingly reserved under [DPS 2]'.[15] As indicated at [6] of the agreed facts, the Court of Appeal made final orders stating that the classified POS land was:[16]
… injuriously affected by reason of the making of [DPS 2] in that the land was reserved under [DPS 2] for a public purpose within [the meaning of] s 174(1)(a) of the Planning and Development Act 2005[.]
[14] The land coloured red-brown under cl 23(2) of the MRS appears orange in the map reproduced at [9].
[15] Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; (2018) 232 LGERA 395 at [125 7].
[16] Order 2(a) made on 12 October 2018 (agreed bundle of documents (Exhibit 2) page 108).
Further to [25] of the agreed facts, s 50 of the SAT Act states as follows:
(1)The Tribunal may, at any time, make an order striking out all, or any part, of a proceeding if it considers that the matter, or any aspect of it, would be more appropriately dealt with by another tribunal, a court, or any other person.
(2)The Tribunal's power to make an order under subsection (1) is exercisable only by a judicial member.
(3)If the Tribunal makes an order under subsection (1), it may refer the matter, or any aspect of it, to the relevant tribunal, court, or person if it considers it appropriate to do so.
(4)The Tribunal may make an order under subsection (1) on the application of a party or on its own initiative.
The interim application by which the Scuttis applied to the Tribunal for '[t]he Tribunal [to] strike out these proceedings pursuant to [s] 50(1) of the [SAT Act]'[17] (s 50 application) states that it was made on the following ground:[18]
An arbitrator appointed pursuant to the [PD Act] and the [CA Act] would, in all the circumstances, more appropriately deal with both claims which affect both lots the subject matter of these proceedings. The State Administrative Tribunal is only empowered to deal with one of the claims pursuant to the [PD Act] whilst an arbitrator is empowered to deal with both[.]
[17] Agreed bundle of documents (Exhibit 2) page 71.
[18] Agreed bundle of documents (Exhibit 2) page 72.
As indicated at [38] of the agreed facts, in January 2018, the Commissioner of Main Roads approached the Scuttis with regard to a proposal to resume the whole of Lot 1 and Lot 8, by way of either an agreement to take under s 168 of the Land Administration Act 1997 (WA) (LA Act) or a taking of that land on an involuntary basis under the LA Act, and '[t]he resumption proceeded by way of s 168 agreement which required a taking order to be registered'. Section 168(1) of the LA Act states as follows:
If any interest in land is required for a public work, the acquiring authority may, whether or not a notice of intention has been registered —
(a)enter into an agreement to purchase the interest; or
(b)obtain the written consent of the person to the taking of the interest, with compensation to be provided under Part 10.
Section 169(1) of the LA Act states as follows in relation to the purchase price in a s 168 agreement to purchase an interest in land:
An agreement under section 168(1)(a) may specify a purchase price or other consideration for the interest in the land, or may provide for it to be assessed as if for compensation under Part 10.
The 's 168 agreement', referred to at [38] of the agreed facts, in fact comprised two s 168 agreements, the first dated 16 May 2018, between Carmela Scutti and the Commissioner of Main Roads, for the acquisition and taking of Lot 8, and the second dated 22 May 2018, between the Scuttis and the Commissioner of Main Roads, for the acquisition and taking of Lot 1 (s 168 agreements).[19] The 'Recitals' in the s 168 agreements states as follows (with the term 'Claimant' defined as Carmela Scutti in the s 168 agreement in relation to Lot 8 and as the Scuttis in the s 168 agreement in relation to Lot 1):[20]
Recitals
AThe Claimant is the registered proprietor of an estate in fee simple in the Land.
BThe Commissioner requires the Land for the purpose of a public work.
CThe Claimant agrees to the acquisition by the Commissioner of the Land subject to the payment of the Compensation.
DThis Agreement in entered into pursuant to [s] 168 of the [LA Act].
[19] Both of the s 168 agreements were subsequently varied by way of Deed of Variation in terms which are not relevant.
[20] Supplementary bundle of documents (Exhibit 4) pages 3 and 12 (original emphasis).
The term 'Compensation' is defined in cl 1.1 of the s 168 agreements as follows:[21]
Compensation means the amount payable for the Land assessed pursuant to [s] 241 of the [LA Act] to be determined in accordance with the provisions of Part 10 of the [LA Act] if not otherwise agreed[.]
[21] Supplementary bundle of documents (Exhibit 4) pages 3 and 12 (original emphasis).
Clause 2 of the s 168 agreements states as follows:[22]
2Commissioner to Take
(a)The Commissioner shall take the estate and interest of the Claimant in the Land free from all limitations, interests, encumbrances, notifications and easements together with the improvements thereon (if any);
(b)The amount of the compensation to be paid for the Land shall be determined in accordance with the provisions of s.168 [sic], 169 and Part 10 of the [LA Act] save as varied by this Agreement when this Agreement will prevail; [and]
[(c)]All valuations made in respect of the Land for the purpose of assessing Compensation shall be made as at the date of execution of this Agreement (the Valuation Date).
[22] Supplementary bundle of documents (Exhibit 4) pages 5 and 14 (original emphasis).
Section 241 of the LA Act is contained within Div 5 (entitled 'Assessing compensation') of Pt 10 (entitled 'Compensation') of the LA Act. Section 241 of the LA Act states, in part, as follows:
(1)In determining the amount of compensation (if any) to be offered, paid, or awarded for an interest in land taken under Part 9, regard is to be had solely to the matters referred to in this section.
(2)Regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on —
(a)in the case of an interest taken for a railway or other work authorised by a special Act — the first day of the session of Parliament in which the Act was introduced; or
(b)in the case of an interest taken by agreement under section 168 — the date of the execution of the agreement, unless the agreement provides otherwise; or
(c)in the case of an interest to which paragraphs (a) and (b) do not apply — the date of the taking,
and discounting any increase or decrease in value attributable to the proposed public work.
…
Pursuant to the s 168 agreements, on 9 August 2018, the Commissioner of Main Roads registered a taking order for the whole of Lot 1 and a taking order for the whole of Lot 8 at Landgate. Consequently, under s 241(2)(b) of the LA Act, the relevant valuation date for the determination of compensation for the compulsory acquisition of Lot 1 and Lot 8 'in the case of an interest taken by agreement under [s] 168' is 'the date of the execution of the agreement, unless the agreement provides otherwise'. The s 168 agreements do not 'provid[e] otherwise'. Therefore, although s 241(2)(b) of the LA Act contemplates that the s 168 agreements could have specified a different valuation date, for the purposes of determining compensation for the taking of Lot 1 and Lot 8 by the Commissioner of Main Roads on 9 August 2018, the relevant valuation date for the determination of compensation for the value of that land is 16 May 2018 (for Lot 8) and 22 May 2018 (for Lot 1).
In her affidavit in support of the application for costs, Ms LE Rowley, the Scuttis' legal representative and counsel, said that the taking orders on 9 August 2018 for Lot 1 and Lot 8 'set a new valuation date of 9 August 2018' for the determination of the value of that land.[23] In effect, Ms Rowley submits that the relevant valuation date for Lot 1 and Lot 8, for the purposes of determining compensation for the taking of that land on 9 August 2019, is under s 241(2)(c) of the LA Act (rather than under s 241(2)(b) of the LA Act), that is:
[I]n the case of an interest to which paragraphs (a) and (b) do not apply — the date of the taking[.]
[23] Affidavit of Linda Elizabeth Rowley sworn on 18 January 2019 (Exhibit 3) [18].
In contrast, the Commission submits that the relevant valuation date under s 241(2) of the PD Act is 'the date of the execution of the agreement' (under s 241(2)(b) of the PD Act).[24]
[24] Applicant's submissions in reply on costs [13].
For the reasons given at [20] above, I accept the Commission's submission on this point. However, nothing turns on whether the relevant valuation date for the determination of compensation for the taking of Lot 1 and Lot 8 by the Commissioner of Main Roads on 9 August 2018 is 'the date of the execution of the [s 168] agreement[s]' (22 May 2018 and 16 May 2018) (under s 241(2)(b) of the LA Act) or 'the date of the taking' of that land (9 August 2018) (under s 241(2)(c) of the LA Act). Significantly, in terms of the Scuttis' application for costs against the Commission, whether the relevant date of valuation in relation to the taking of Lot 1 and Lot 8 by the Commissioner of Main Roads on 9 August 2018 is the date of the execution of the s 168 agreements or the date of taking, that date is about four years after the valuation date for the purposes of determining the value of the reserved land, which the Commission elected to acquire under s 187 of the PD Act instead of paying compensation for injurious affection, under s 188(1)(a) of the PD Act. As indicated earlier, s 187(3) of the PD Act states that, if the responsible authority and the owner of the land are unable to agree as to the price to be paid for the land, 'the price at which the land may be acquired by the responsible authority is to be the value of the land as determined in accordance with [s] 188 [of the PD Act]'. As also indicated earlier, under s 188(1)(a) of the PD Act, the value of the land referred to in s 187(3) is to be:
[T]he value of the land on the date the responsible authority elects to acquire the land under [s 187][.]
As indicated earlier, the date on which the Commission elected to acquire the reserved land, instead of paying compensation for injurious affection, was 25 June 2014. Central to the Scuttis' application for costs against the Commission is that, because the value of the land taken by the Commissioner of Main Roads on 9 August 2018 is to be determined, under s 241(2) of the LA Act, as at 16 and 22 May 2018 (or, in Ms Rowley's submission, 9 August 2018), whereas the value of the reserved land, which the Commission elected to acquire on 25 June 2014, instead of paying compensation for injurious affection, is to be determined, under s 188(1)(a) of the PD Act, as at 25 June 2014, in Ms Rowley's submission:[25]
… the antecedent costs which had accrued [in relation to the claim for injurious affection to the reserved land and the valuation of the reserved land as at 25 June 2014, following the election of the Commission to acquire that land] … were rendered useless. And they were rendered useless because of the taking. The taking provided a different valuation date.
It provided a different set of regulatory frameworks for the different experts who had been appointed, who included architects, retail specialists, valuers, planners and traffic engineers. …
Scuttis' draft bill of costs
[25] ts 16, 21 May 2019.
On 11 January 2019, the Tribunal ordered the Scuttis to file and serve 'their claim for costs in the form of a bill of costs annexed to an affidavit verifying those costs'. On 18 January 2019, the Scuttis filed and served Ms Rowley's affidavit which annexed their 'Draft Bill of Costs' dated 14 December 2018 setting out the costs sought by the Scuttis under s 87(2) of the SAT Act (draft bill of costs).[26]
[26] Annexure 'LER 1' to the Affidavit of Linda Elizabeth Rowley sworn on 18 January 2019 (pages 6 - 98).
The draft bill of costs contains a brief description of legal work done on various dates between 18 May 2012 and 13 December 2018, including the time spent on each item (at 0.1 units of an hour), 'amount charged GST exclusive' (to the Scuttis) and 'SAT scale charge'. The 'SAT scale charge' is based on the maximum hourly rate for a Senior Practitioner prescribed, at the relevant time, in the Legal Profession (State Administrative Tribunal) Determination, made under s 275 of the Legal Profession Act 2008 (WA) (LP Act), regulating legal fees that may be charged by lawyers in SAT proceedings in the absence of a written costs agreement with a client (SAT Determination).[27] Although the SAT Determination strictly only applies to regulate legal fees between lawyer and client (in the absence of a written costs agreement), where the Tribunal makes an order for costs and fixes or assesses the amount of costs, the Tribunal applies 'as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant hourly or daily rate specified in the [SAT Determination]'[28].
[27] Each SAT Determination acknowledges at [3(b)] that 'the overriding philosophy of the Tribunal, as expressed through its enabling legislation, is that parties appearing before the Tribunal are to bear their own costs of proceedings'. Each SAT Determination, therefore, states that 'it is unnecessary … to recommend the implementation of a scale of fees in the Tribunal in respect of party/party costs' ([4(a)]).
[28] Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR (WA) 194 at [53].
The amount of costs sought by the Scuttis from the Commission for legal fees is at the 'SAT scale charge', rather than the 'amount charged GST exclusive' (to the Scuttis), and excludes work done in respect of the application to the Supreme Court for the appointment of an arbitrator under the CA Act (referred to at [28] of the agreed facts) and work done in respect of the City's application to the Tribunal for a determination, under s 176(1) of the PD Act, as to whether the classified POS land was injuriously affected by operation of DPS 2 (referred to at [29] of the agreed facts).[29]
[29] Affidavit of Linda Elizabeth Rowley sworn on 18 January 2019 (Exhibit 3) [20].
The draft bill of costs also contains a schedule of consultants' fees, whose invoices are attached, and a schedule of 'other disbursements', being application fees for the lodgement of the grouped dwellings development application, with relevant invoices attached.
The draft bill of costs contains the following 'summary' of the costs sought by the Scuttis from the Commission:[30]
[30] Affidavit of Linda Elizabeth Rowley sworn on 18 January 2019 (Exhibit 3) page 6 (original emphasis).
SUMMARY
Legal Fees (GST inclusive) at SAT rates: $51,868.70
Consultants [including GST]
Meyer Shirecore $5,500.00
Rowe Group: $51,525.17
Cardno: $11,803.00
Opteon: $24,530.00
Hindley & Associates: $10,789.50
Other Fees: $11,902.00
Total: $162,418.37
In her affidavit, Ms Rowley explained that Meyer Shirecore are the architects who she instructed to prepare the plans lodged with the grouped dwellings development application, the refusal of which was the 'triggering event', under s 177(1)(b)(i) and s 178(1)(a)(ii) of the PD Act, for the Scuttis to be able to make their claim for compensation for injurious affection in respect of the reserved land.[31] The sum of $5,500 referred to in the summary of costs were fees charged by Meyer Shirecore to prepare the development application plans.
[31] Affidavit of Linda Elizabeth Rowley sworn on 18 January 2019 (Exhibit 3) [13].
Ms Rowley also said that Meyer Shirecore 'required preliminary traffic advice with regard to access issues and so the firm Cardno were instructed to provide that advice'.[32] Ms Rowley indicated that traffic engineers employed by Cardno also informed the Scuttis' position on the 'highest and best use' of Lot 1 and Lot 8 for valuation purposes by providing:[33]
… advice with regard to the exits, or the potential exits from a hypothetical development on the subject lots onto what are primary regional roads.
[32] Affidavit of Linda Elizabeth Rowley sworn on 18 January 2019 (Exhibit 3) [14].
[33] ts 31, 21 May 2019.
The sum of $11,803 referred to in the summary were fees charged by Cardno for traffic advice for the grouped dwellings development application and to inform the determination of the highest and best use of the reserved land for valuation purposes.
Ms Rowley gave the following explanation in relation to the $51,525.17 sought by the Scuttis for fees charged by Rowe Group, which is a town planning firm:[34]
… Rowe Group were involved in both the first and second development application[s]. They dealt with the planning justification, and the contact with the [City] with regard to the progression of those two development applications, and they produced a planning report which supported the ultimate valuation which in turn led to the parties being able to discuss offers of compensation and counter-offers.
[34] ts 31, 21 May 2019.
In relation to the $10,789.50 sought in relation to Hindley & Associates, Ms Rowley explained that that firm was 'instructed to prepare a design for a commercial development to inform the valuer'[35] 'with regard to the highest and best use of the land'.[36]
[35] Affidavit of Linda Elizabeth Rowley sworn on 18 January 2019 (Exhibit 3) [17].
[36] ts 32, 21 May 2019.
The Opteon Property Group are land valuers who prepared the land valuation of the reserved land as at 25 June 2014, informed by other consultants' input, including in relation to the highest and best use of that land, to enable the Scuttis to assess the Commission's offers of an acquisition price in respect of the reserved land, which were made on 9 September 2014,[37] and to make a counter-offer to the Commission on 27 July 2015.[38] The sum of $24,530 referred to in the summary of costs were fees charged by Opteon Property Group for this valuation work.
[37] Agreed statement of facts (Exhibit 1) [16].
[38] Agreed statement of facts (Exhibit 1) [17(b)].
As indicated earlier, the 'Other Fees' are the application fees paid by the Scuttis to the City on lodgement of the grouped dwellings development application.
Legal framework and principles
Section 87 of the SAT Act concerns costs of parties and others in the Tribunal and states as follows:
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to —
(a)whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;
(b)whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
(5)The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
(6)The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.
As is apparent from the terms of s 87(1) of the SAT Act, and as Murphy JA said in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 at [50] (Martin CJ at [1] and Corboy J at [75] agreeing):
… the presumptive position or starting point under s 87(1) of the SAT Act [is] that each party is to bear its own costs.
For this reason, SAT is often referred to as a generally 'no costs' or 'costsneutral' jurisdiction. However, as is apparent from the terms of s 87(2) of the SAT Act, that provision confers a broad discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party in SAT proceedings. The only mandatory matters prescribed under the SAT Act for consideration in the exercise of this discretion are set out in s 87(4), relating to proceedings within the Tribunal's 'review jurisdiction'. Under s 17(1) of the SAT Act, a matter comes within the Tribunal's 'review jurisdiction' where it expressly or necessarily involves a review of a decision. These proceedings, which were commenced by the Commission under s 188(3)(b) of the PD Act, seeking a determination by the Tribunal of the value of the reserved land which the Commission elected to acquire, instead of paying compensation for injurious affection, under s 187 of the PD Act, does not involve the review of a decision, and therefore does not fall within the Tribunal's 'review jurisdiction'.
The 'main objectives' of the Tribunal, which are set out in s 9 of the SAT Act, are relevant to the proper interpretation and application of s 87 of the SAT Act in relation to costs. Section 9 of the SAT Act states as follows:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are —
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.
The applicable principles in relation to the determination of the Scuttis' application for costs were recently authoritatively stated by the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd. That case involved an appeal from a decision of the Tribunal in relation to an application for costs sought by the Commission from a landowner in proceedings brought by the landowner under s 188(2)(b) of the PD Act for the determination by the Tribunal of the value of land which the Commission elected to acquire, instead of paying compensation for injurious affection, under s 187(1) of the PD Act. The proceedings were withdrawn by the landowner, under s 46(1) of the SAT Act, subject, in effect, to the determination of the Commission's foreshadowed application for costs. Murphy JA set out the relevant principles at [46]-[58] and [64]-[65] (Martin CJ at [1] and Corboy J at [75] agreeing) as follows:[39]
[39] Citations omitted.
46The effect of s 87(1) of the SAT Act is, relevantly, that each party in proceedings before the Tribunal is to bear its own costs, unless the Tribunal otherwise orders.
47The power to make an order for one party to pay another party's costs is contained in s 87(2). In exercising the discretion in its review jurisdiction the Tribunal is bound, by virtue of s 87(4), to take into account the considerations therein specified. Also, the effect of s 87(5) of the SAT Act and r 42(2) of the SAT Rules is that in its original jurisdiction the Tribunal is required to take into account that a party did not accept an offer of settlement (made in compliance with r 40 and r 41) more favourable than the Tribunal's order.
48Otherwise the factors which the Tribunal will be bound to take into account (mandatory considerations) and precluded from taking into account (irrelevant considerations) will be determined by implication from the subject matter, scope and purpose of the SAT Act properly construed. The observations of Gaudron and Gummow JJ in Oshlack v Richmond River Council [[1998] HCA 11; (1998) 193 CLR 72 at [22]], albeit in a different statutory context, are apposite:
The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as 'the subject matter and the scope and purpose' of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be 'definitely extraneous to any objects the legislature could have had in view'.
49Although s 87(2) does not in terms say that the discretion 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 and the scheme of the SAT Act indicates that, broadly speaking, that is the legislative intention.
50Unlike in curial litigation, the 'important principle commonly referred to as the "usual order as to costs"', under which the successful party is prima facie entitled to his or her costs, has no application given the presumptive position or starting point under s 87(1) of the SAT Act that each party is to bear its own costs.
51Section 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.
52In a matter relating to its original jurisdiction, by virtue of s 16 of the SAT Act, the Tribunal is to deal with the matter in accordance with the SAT Act and the enabling Act. Relevantly for present purposes the enabling Act is the PD Act. The PD Act enables the owner of land to apply to the Tribunal for a determination of the value of the land where the responsible authority has elected to acquire the land instead of paying compensation for injurious affection: s 187 and s 188 of the PD Act. Section 188 of the PD Act makes no mention of costs.
53In this context, the nature of the dispute, which Parliament has given the landowner the option of having determined in a forum where the presumptive position is that each party is to bear its own costs, is a relevant consideration. The dispute is in relation to the value of the landowner's land which is to be compulsorily acquired by the State. Adopting and adapting the observations of Wilcox J in Banno v Commonwealth of Australia [(1993) 45 FCR 32 at [51]], this is 'not ordinary litigation'. The relationship between the parties giving rise to the litigation does 'not arise out of their mutual desire; [but rather] because of a unilateral decision' of the State 'to acquire the applicants' land in order to satisfy a perceived public need'. The acquisition leaves the landowner in the position of either accepting the State's assessment of the proper compensation or of having the Tribunal rule on its adequacy. Similarly, as has been observed in a not dissimilar context by the New South Wales Court of Appeal, the parties 'are not, or should not be, adversaries in the sense that can be said of the usual kind of civil litigation in courts'.
54An applicant landowner, like every party to proceedings before the Tribunal, is, however, taken to be cognisant of the Tribunal's objectives in s 9 of the SAT Act. Accordingly, in an application for costs against a landowner it will be relevant to consider whether and to what extent the responsible authority can establish that the landowner's conduct in connection with the proceedings has impaired the attainment of the Tribunal's objectives to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality and technicality as possible, and in a way which minimises the costs to the parties.
55Nevertheless, the mere fact that a landowner ultimately fails on some contention or contentions advanced at trial would not, in itself, signify that it has acted inconsistently with the objectives in s 9. That is particularly so in the context that under s 46, s 47 and s 48 of the SAT Act, plainly unmeritorious claims, or claims made or pursued in circumstances which, broadly speaking, may be characterised as involving misconduct, may be screened out before final hearing. The Tribunal in such circumstances may act on its own volition or on the application of a party.
56As Wilcox J suggested in Banno:
[P]eople in that position should be allowed access to the Court, to present an arguable and well-organised case, without being deterred by the prospect of being ordered to pay the Commonwealth's costs if their case proves unpersuasive. I distinguish the situation of resumees who pursue a vexatious, dishonest or grossly exaggerated claim or present their case in such a way as to impose unnecessary burdens on the Commonwealth or the Court.
57The observations of Wilcox J in Banno, referred to in [53] and [56] above, were effectively endorsed by the New South Wales Court of Appeal in an analogous, although not identical, statutory context in Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) [[No 3] [2012] NSWCA 404; (2012) 191 LGERA 267].
58The nature of the dispute for determination, ie, the value of the land in the context of compulsory acquisition, will be a factor in the exercise of discretion under s 87(2) in favour of the landowner in proceedings where the responsible authority has been unsuccessful in the forensic contest. That is not in recognition of a rule that costs follow the event. Rather, it is a recognition that, generally speaking, the legislative purpose will be served by 'the claimant … [receiving] his reasonable costs of obtaining the compensation that is, ex hypothesi, his due'. Even there, however, it would remain relevant to consider whether it would be fair and reasonable for the 'successful' landowner to be deprived of its costs, or part of its costs, in all the circumstances of the case, including having regard to the matters referred to earlier.
…
64Finally, the Tribunal may order costs under s 87(2) against an applicant who withdraws its proceedings in accordance with s 46 of the SAT Act. That is evident from the width of the language in s 87(2) and is implicit from the power conferred by s 88 of the SAT Act. Read as a whole, s 88 contemplates, relevantly, that even costs, other than the costs of the party, may be ordered in the Tribunal's original jurisdiction where an order for withdrawal could be made under s 46. It is implicit in that event that costs may be ordered in favour of a party under s 87(2). Section 88 also by necessary implication indicates that in its original jurisdiction, in an application for costs against a party, conduct of the kind referred to in s 46(3), s 47 and s 48 of the SAT Act will be relevant to the Tribunal's exercise of discretion under s 87(2).
65However, even in a jurisdiction in which the general rule is that costs follow the event, the withdrawal of proceedings by leave does not automatically attract a costs order in favour of the party against whom the proceedings are withdrawn. Section 46 of the SAT Act evinces no presumption that a withdrawing party should pay the other party's costs. Rather the presumptive position under s 87(1) applies unless the other party can establish that the discretion to award costs under s 87(2) should be exercised in its favour. There is no onus on the withdrawing party to show why it should not pay the other party's costs. All the circumstances would need to be considered in light of the considerations referred to above.
Section 89 of the SAT Act concerns the assessment of the amount of costs where an order for costs is made by the Tribunal, and states as follows:
If the Tribunal makes an order under this Division for the payment of costs and does not fix the amount of costs, that amount is to be assessed or settled in accordance with the rules.
As contemplated by the terms of s 89 of the SAT Act, the Tribunal may and often does fix the amount of costs, if, and at the time when, it makes an order for costs under s 87(2) of the SAT Act. The Tribunal assesses costs 'in a relatively robust fashion',[40] consistently with its main objectives set out in s 9 of the SAT Act, in particular, 'to act as speedily and with as little formality and technicality as is practicable, and to minimise the costs to parties'. As the Tribunal has said, 'any award [of costs] should be approached in a broad fashion and should not have to descend into [an] enquiry into small items of expenditure',[41] and:[42]
[T]he preferable approach is not to look at what has actually been charged to the client, but rather what reasonable allowance should be made, taking a robust and broad brush approach, for the work necessarily done to bring the proceedings to a conclusion.
Issues for determination
[40] Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49]; see, for example, Medical Board of Australia and Woollard [2012] WASAT 209 (S); (2012) 82 SR (WA) 377 at [49]-[56]; and Medical Board of Australia and Costley [2013] WASAT 2; (2013) 83 SR (WA) 1 at [66]-[71].
[41] Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302; (2008) 60 SR (WA) 194 at [67].
[42] Medical Board of Australia and Costley at [66].
The following three principal issues arise for determination in relation to the Scuttis' application for costs against the Commission:
(1)Whether the Tribunal has power to make a costs order against the Commission for expenses incurred by the Scuttis prior to the commencement of these proceedings in relation to the grouped dwellings development application, the claim for compensation for injurious affection and the valuation of the reserved land.
(2)Whether the Tribunal's discretion as to costs under s 87(2) of the SAT Act should be exercised to make an order for the payment by the Commission of all or any of the costs of the Scuttis.
(3)If the answer to issue (2) is 'yes', what amount of costs should be fixed or assessed in the circumstances of this case.
I will address each of these issues in turn.
Does the Tribunal have power to make a costs order for expenses incurred prior to the commencement of these proceedings in relation to the grouped dwellings development application, the claim for compensation for injurious affection and the valuation of the reserved land?
In its written submissions, filed prior to the hearing, the Commission contended that the Tribunal does not have power under s 87(2) of the SAT Act to make a costs order for work done prior to the commencement of these proceedings, in particular expenses associated with the making of the grouped dwellings development application, the application for compensation for injurious affection, and the valuation of the reserved land, because such expenses are not 'costs in a proceeding of the Tribunal' under s 87(1) of the SAT Act. However, having heard an exchange between the Tribunal and Ms Rowley, Ms LJ Dias, who appeared with Ms M Payne on behalf of the Commission, essentially abandoned an argument that the Tribunal has no power to award costs sought by the Scuttis in relation to expenses incurred by them prior to the commencement of the proceedings (although she maintained that the Tribunal should not exercise its discretion to award such costs in the circumstances of this case).[43]
[43] ts 39 and 60, 21 May 2019.
The Commission's concession on the point was appropriate. Although s 87(2) of the SAT Act, when read in the context of s 87(1) of the SAT Act, confers power to 'make an order for the payment by a party of all or any of the costs of another party' (s 87(2) of the SAT Act) (only) where the costs the subject of the order are 'costs in a proceeding of the Tribunal' (s 87(1) of the SAT Act), it is clear from the terms of s 87(3) of the SAT Act that that provision extends or expands the ordinary meaning of the expressions 'costs in a proceeding of the Tribunal' (s 87(1) of the SAT Act) and 'the costs of another party' (s 87(2) of the SAT Act) to relevantly include '… expenses … resulting from … the matter because of which the proceeding was brought'. In this case, the 'matter because of which the proceeding was brought' is the Scuttis' claim for compensation for injurious affection of the reserved land, by reason of its reservation for a public purpose, namely 'Primary Regional Roads', under the MRS, and, in consequence of the Commission's election to acquire the reserved land, instead of paying compensation for injurious affection, under s 187(1) of the PD Act, the determination of 'the price at which the land may be acquired by the [Commission] … [namely,] the value of the land as determined in accordance with [s 188 of the PD Act]' (s 187(3) of the PD Act).
In the circumstances of this case, the expenses incurred by the Scuttis in making the grouped dwellings development application, the refusal of which was the relevant 'triggering event' for their claim for compensation for injurious affection of the reserved land, making the claim for compensation for injurious affection, and for the purposes of the valuation of the reserved land as at the date on which the Commission elected to acquire it, instead of paying compensation for injurious affection, including their costs in responding to the Commission's offers of land value and in making their counter-offer of land value, are 'expenses … resulting from … the matter because of which the proceeding was brought', within the meaning of s 87(3) of the SAT Act. These expenses, therefore, fall within the extended or expanded meaning of the expressions 'costs in a proceeding of the Tribunal' in s 87(1) of the SAT Act and 'the costs of another party' in s 87(2) of the SAT Act.
Should the Tribunal's discretion as to costs be exercised to make an order for the payment by the Commission of all or any of the costs of the Scuttis?
As indicated earlier, the applicable principles in relation to the Scuttis' application for costs were stated by Murphy JA (Martin CJ and Corboy J agreeing) in Western Australian Planning Commission v Questdale Holdings Pty Ltd. As Murphy JA said at [51], '[t]he onus is on the party seeking an order [for costs] in its favour'. As his Honour also said there:
… 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.
His Honour said at [53] that the 'nature of the dispute' in that case, namely an application for the determination of the value of land which the responsible authority has elected to acquire under s 187(1) of the PD Act, instead of paying compensation for injurious affection:
… which Parliament has given the landowner the option of having determined in a forum where the presumptive position is that each party is to bear its own costs, is a relevant consideration [in the exercise of discretion as to costs].
The 'nature of the dispute' in this proceeding is the same as in Western Australian Planning Commission v Questdale Holdings Pty Ltd. Moreover, just as Parliament has given the landowner the option of having the value of injuriously affected land, which the responsible authority has elected to acquire instead of paying compensation for injurious affection, determined 'in a forum where the presumptive position is that each party is to bear is own costs', it has given the responsible authority the same option. The Commission exercised that option in this case.
Furthermore, as Murphy JA said in Western Australian Planning Commission and Questdale Holdings Pty Ltd at [65], s 46 of the SAT Act, pursuant to which the Tribunal granted leave to the Commission to withdraw these proceedings, 'evinces no presumption that a withdrawing party should pay the other party's costs' and '[t]here is no onus on the withdrawing party to show why it should not pay the other party's costs'. As his Honour went on to say there:
Rather the presumptive position under s 87(1) applies unless the other party can establish that the discretion to award costs under s 87(2) should be exercised in its favour.
The Scuttis submit that, in the circumstances of this case, it is fair and reasonable that they should be reimbursed by the Commission for their costs of these proceedings, including expenses resulting from the matter because of which the proceedings were brought, for essentially two reasons. In contrast, the Commission submits that it is not fair and reasonable for it to be ordered to pay any of the costs sought by the Scuttis and that each party should bear its own costs.
The Scuttis submit, firstly, that it is fair and reasonable that there should be an order for costs in their favour, because the Commission acted unreasonably in commencing and maintaining (in the face of the s 50 application) these proceedings, when they (the Scuttis) wished to have both their injurious affection claims, against the Commission (as to the value of the reserved land which the Commission elected to acquire, instead of paying compensation, under s 188(2)(a) of the PD Act) and against the City (as to compensation for injurious affection in respect of the classified POS land, under s 179 of the PD Act), determined in a composite or joint arbitration under the CA Act. Ms Rowley expressed the submission in the following terms:[44]
… in my respectful submission, the proceedings were issued somewhat precipitously before those discussions were properly exhausted. Now, I can understand that the [Commission] might have thought, "Well, if there's going to be a dispute about whether or not the POS land is injuriously affected, we're not going to hang about for that. We're going to be getting on with it." But when you look at it in a sensible and prudent way, there really is no imperative certainly at that time, there was no imperative for the claim to be resolved expeditiously. There was nothing planned at that time, the federal funding had not been obtained and the construction of the road was some time in the future.
So, in brief, my point is that, had there been a sensible course pursued prior to these proceedings, they may not have been necessary at all because in the end, the proceedings with regard to the reservation were successful so far as the [Scuttis] were concerned and once that point was reached, then a joint position could have proceeded which would have been cost effective for both parties because after all, both parties certainly the [Scuttis] would have been fighting on two fronts but each of the [City] and the [Commission] would also have been fighting on a different front.
The fact of the reservations on [L]ots 1 and 8 and the indivisibility the absolute indivisibility of those reservations would have in fact, did result in the land the land being [Lots] 1 and 8 having to be dealt with by all experts as a totality. The artificial separation into the reservations would have been a most difficult exercise and I very much doubt it would have been attempted by any of the experts.
[44] ts 73, 21 May 2019.
However, in my view, it was reasonable for the Commission to commence these proceedings when it did, and not to acquiesce to the Scuttis' preference for a composite or joint arbitration under the CA Act, for the following reasons.
First, the conditions precedent to the commencement of these proceedings under s 188(3) of the PD Act were satisfied, because, within 12 months of the date on which the Commission elected to acquire the reserved land:
•the Commission and the Scuttis were unable to agree as to the price to be paid for that land;
•no arbitration had been commenced in accordance with the CA Act;
•no application had been made by the Scuttis to the Tribunal for the determination of the value of that land; and
•no other method had been agreed by the Commission and the Scuttis for the determination of that value.
The Commission was therefore entitled to commence these proceedings.
Secondly, although the Scuttis had lodged a joint claim for compensation for injurious affection in respect of Lots 1 and 8 with both the City (in relation to the classified POS land) and the Commission (in relation to the reserved land),[45] in contrast to the Commission, which accepted that the reserved land was injuriously affected under the MRS, the City disputed whether the classified POS land was injuriously affected under DPS 2. Furthermore, on 22 December 2015, the City commenced proceedings DR 470 of 2015, under s 176(1) of the PD Act, for the determination by the Tribunal as to whether the classified POS land was injuriously affected under DPS 2.[46] That issue was only finally determined by the Court of Appeal on 12 October 2018.
[45] Agreed facts [12].
[46] Curiously, although the Tribunal has jurisdiction, under s 176(1) of the PD Act, to determine 'any question as to whether land is injuriously affected', and jurisdiction, under s 188(2)(b) and s 188(3)(b) of the PD Act, to determine the value of land which a responsible authority elects to acquire under s 187(1) of the PD Act, instead of paying compensation for injurious affection, the Tribunal does not have jurisdiction to determine compensation for injurious affection. Section 176(2) of the PD Act provides that '[a]ny question as to the amount and manner of payment … of the sum which is to be paid as compensation [for injurious affection] … is to be determined by arbitration under and in accordance with the [CA Act], unless the parties agree on some other method of determination'. Notwithstanding the last part of this provision, the Tribunal cannot acquire or assume jurisdiction or power by consent: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 at 163 (Gibbs CJ, Stephen, Mason and Wilson JJ). Given that jurisdiction has been conferred on the Tribunal in relation to injurious affection under s 176(1), s 188(2)(b) and s 188(3)(b) of the PD Act, consideration should be given to conferring jurisdiction on the Tribunal under s 176(2) also.
Furthermore, it was reasonable for the Commission not to consent to the s 50 application, given:
•the City's position that the classified POS land was not injuriously affected under DPS 2;
•the City's commencement of proceeding DR 470 of 2015 within two weeks of the filing of the s 50 application; and
•although the Scuttis lodged a joint claim for compensation for injurious affection in respect of Lots 1 and 8 with the City and the Commission, there were, in fact, two separate claims, based on reservations of different parts of that land for two separate public purposes ('Primary Regional Roads' for the reserved land and 'reserve' being a 'Local Reserve' for the classified POS land), and raising different issues, given the differing positions of the Commission and the City in relation to whether the relevant land is injuriously affected, and the Commission's election to acquire the reserved land, instead of paying compensation for injurious affection.
The Scuttis' second argument as to why it is fair and reasonable that there should be a costs order in their favour is that, they submit, the Commission and the Commissioner of Main Roads both or jointly decided, in 2018, to compulsorily acquire the whole of Lots 1 and 8, thereby creating a new valuation date for the land (the dates of the s 168 agreements, namely 16 and 22 May 2018, rather than the date on which the Commission elected to acquire the reserved land, instead of paying compensation for injurious affection, namely 25 June 2014), and consequently rendering all of the expenses incurred by them in relation to the claim for compensation for injurious affection and the valuation of the reserved land as at 25 June 2014 'useless'.[47] The Scuttis made the following submissions in relation to this argument:[48]
82.A considerable period after the issuing of the application in this matter and without advising or conferring with the [Scuttis], the [Commission] and [the Commissioner of] Main Roads decided to compulsorily resume the Land rendering the [Commission's] own application otiose and unnecessary and creating a new valuation date which rendered useless the expert opinion obtained by the [Scuttis] at considerable expense.
83.The submissions at [1-10] above show that the [Commission] at all times was performing its statutory duty as the administrator of the MRS in acquiring land for road purposes to enable Main Roads to build a Primary Regional Road upon it.
84.The common purpose and actions of both the [Commission] and Main Roads were to achieve the acquisition of the Land for the purpose of Wanneroo Road and Ocean Reef Road interchange (as the public purpose was described in the taking order ([39] of the [agreed facts]).
85.In those circumstances it is immaterial that the Commissioner for Main Roads issued the taking order.
[47] ts 16, 21 May 2019.
[48] Respondents' outline of submissions on costs dated 1 March 2019 [82]-[85].
The essence of the Scuttis' argument was expressed by Ms Rowley in the following terms in oral submissions:[49]
… the actions of the [Commission] [and] [the Commissioner of] Main Roads are of the same ilk [and] are one and the same indivisible going towards the same purpose, it is that taking which has rendered otiose and unnecessary and wasted the costs which have been expended by the respondent in preparing its case for the reservation. It is a claim which it can no longer pursue against the [City] because the land has been resumed.
…
It was lost because of the taking order and the taking order is the action of the applicant [the Commission] … in these proceedings. I put it to you as broadly as that.
[49] ts 22-23, 21 May 2019.
In effect, the Scuttis submit that the Tribunal should draw an inference, from various aspects of the evidence, that the decision to acquire the whole of Lots 1 and 8 in 2018 was made by the Commission (and the Commissioner of Main Roads), with the consequence that the money expended by the Scuttis, particularly in relation to the valuation of the reserved land as at June 2014, was rendered 'useless'. However, in my view, for the reasons which follow, an inference that the Commission decided to acquire the whole of Lots 1 and 8 (rather than merely the reserved land) is simply not established on the basis of the evidence the Scuttis point to. Indeed, and to the contrary, the inference that is clearly established on the evidence is that it was the Commissioner of Main Roads (and only the Commissioner of Main Roads) who decided, in 2018, to acquire the whole of Lots 1 and 8, and that the Commission had only relevantly decided to acquire the reserved land.
The first aspect of the evidence relied on by the Scuttis is a letter dated 22 May 2012 from the Land Dealings Coordinator of the Commission to Norton Rose Australia, the Scuttis' then solicitors, concerning a proposal, at the time, for the negotiated acquisition of the whole of Lots 1 and 8. The letter states as follows:[50]
[50] Agreed bundle of documents (Exhibit 2) pages 1-2 (original emphasis).
Norton Rose Australia
Level 39 Bankwest Tower
108 St Georges Tce
Perth WA 6000
WITHOUT PREJUDICE SAVE AS TO COSTS
Dear Mrs Rowley
Negotiated acquisition of Lots 1 and 8 Wanneroo Road, Pearsall.
Thankyou [sic] for the advice that your firm is now respresenting [sic] interests in the above mentioned properties.
The Western Australian Planning Commission (the "Commission'') entered into voluntary acquisition negotiations with the owners of [L]ots 1 and 8 at the instigation of a previously nominated agent and made an offer of purchase on each lot in correspondence dated 3 February 2012.
The two offers previously made have now technically expired although the owners [sic] previous agent had on several ocassions [sic] indicated that the offer was at a monetary level where an agreement was likely.
The Commission had made financial provision to settle the acquisition within the current financial year and allocated the funds for settlement and that position is still possible provided settlement occurs prior to 30 June 2012.
There is no provision to carry over the 2011/2012 allocated funds into the ensuing financial year.
The 2012/2013 financial budget is heavily constrained in line with government direction and it is unlikely that the quantum of funds necessary to purchase particularly [L]ot 8 could be made available.
The land is not required for the intended public work ("red road") for a considerable period of time and other acquisition priorities exist in the forward budget.
Should agreement on an acquisition price be possible within sufficient time to programme a settlement prior to 30 June 2012, the matter could be resolved as the certicates [sic] of title appear to be free of encumbrances enabling a simple settlement process.
I look forward to your timely advice on this matter.
Should you have any enquiries in regard to the above, please do not hesitate to contact me.
Yours sincerely
Dale M Hall FAPI CPV
Land Dealings Coordinator
WAPC Property Management Services
22 May 2012.
The letter from the Commission to the Scuttis' solicitors dated 22 May 2012 evidences that the Commission 'entered into voluntary acquisition negotiations' with the Scuttis, at the instigation of their previously nominated agent, and 'made an offer of purchase of each lot in correspondence dated 3 February 2012'. The letter also indicates that the Commission was, as at 22 May 2012, still willing to purchase the whole of Lots 1 and 8, although it sought Ms Rowley's 'timely advice on this matter'. It appears from the letter that the reason the Commission sought 'timely advice' was that the Commission 'had made financial provision to settle the acquisition within the current financial year and allocated the funds for settlement' and that, although 'that position is still possible provided settlement occurs prior to 30 June 2012', '[t]here is no provision to carry over the 2011/2012 allocated funds into the ensuing financial year' and '[t]he 2012/2013 financial budget is heavily constrained in line with government direction and it is unlikely that the quantum of funds necessary to purchase particularly [L]ot 8 could be made available'.
In her oral submissions, after referring to the letter from the Commission dated 22 May 2012, Ms Rowley said the following:[51]
And the subsequent pages of the [agreed bundle of documents] around that time, leading into 2015, show that the [Commission] was negotiating on behalf of Main Roads to acquire this land because there can be no submission and I emphasise this there can be no submission that the [Commission] was acquiring this land or negotiating for this land for any other purpose but a regional road reservation.
[51] ts 65, 21 May 2019.
However, the 'subsequent pages' of the agreed bundle of documents[52] do not support this submission. There is no evidence before the Tribunal of any response to the letter from the Commission dated 22 May 2012. There is no evidence before the Tribunal of any 'negotiati[on] on behalf of Main Roads', after the letter dated 22 May 2012, for the purchase of the whole of Lots 1 and 8.
[52] Exhibit 2.
Rather, the evidence indicates that, on 19 April 2013, the Scuttis applied for development approval to construct a rural shed on Lots 1 and 8 and that, on 3 December 2013, they applied for development approval to construct 20 grouped dwellings on Lots 1 and 8, and, following the refusal of the latter development application, on 3 April 2014, they lodged a joint claim for compensation for injurious affection in respect of Lots 1 and 8 with the City (in relation to the classified POS land) and the Commission (in relation to the reserved land). Thereafter, on 14 May 2014, the Commission acknowledged receipt of the claim for compensation for injurious affection and, on 25 June 2014, the Commission elected to purchase the reserved land, instead of paying compensation for injurious affection in relation to it, under s 187(1) of the PD Act. Thus, on 25 June 2014, the Commission indicated to the Scuttis not that it wished to purchase the whole of Lots 1 and 8, but rather that it wished to purchase (and, indeed, had elected to purchase) (only) the parts of Lots 1 and 8 which are reserved for 'Primary Regional Roads' under the MRS.
Given that:
•there is no evidence of any negotiations between the Commission and the Scuttis for the purchase of the whole of Lots 1 and 8 after the Commission's letter dated 22 May 2012 (and, indeed, no evidence of any response to that letter);
•the negotiations of which there is evidence before the Tribunal, between the Commission and the Scuttis following the Commission's election on 25 June 2014 and before the commencement of these proceedings on 27 November 2015, were in relation to the value of the reserved land (and not the value of the whole of Lots 1 and 8); and
•the effluxion of five to six years between the letter dated 22 May 2012 and when the Commissioner of Main Roads approached the Scuttis with regard to a proposal to resume the whole of Lots 1 and 8 and entered into the s 168 agreements with them,
the letter dated 22 May 2012 does not establish the inference the Scuttis invite the Tribunal to draw in relation to the involvement of the Commission in the decision made in 2018 to acquire the whole of Lots 1 and 8. Rather, the evidence in relation to the Commission's conduct in the period after the letter dated 22 May 2012 indicates that, although the Commission had sought to acquire the whole of Lots 1 and 8 during the 2011/2012 financial year, it did not seek to acquire the whole of that land after that time and, indeed, was seeking to (only) acquire the reserved land after that time.
The second item of evidence relied on by the Scuttis in support of the inference that they invite the Tribunal to draw, in relation to the involvement of the Commission in the decision to acquire the whole of Lots 1 and 8 in 2018, is Deposited Plan 413647, which was lodged by the Commission at Landgate on 22 January 2018 (deposited plan). Ms Rowley submits that the deposited plan supports an inference that the Commission made the decision (together with the Commissioner of Main Roads) to acquire the whole of Lots 1 and 8.[53] However, Deposited Plan 413647, in fact, shows the opposite. The deposited plan is reproduced below:[54]
[53] ts 11-13, 21 May 2019.
[54] Affidavit of Linda Elizabeth Rowley sworn on 18 January 2019 (Exhibit 3) page 108. The evidence does not disclose when or by whom the hand-written annotation 'LOT 141' and the line next to was added to the plan on the right. However, the annotation is consistent with Enlargement 'A' which is the plan on the left.
The evident purpose of the deposited plan is to effect the subdivision of Lot 1 and Lot 8 into a total of four lots, namely Lot 40, Lot 41, Lot 140 and Lot 141, in order for:
LOTS 140 & 141 TO BE ACQUIRED FOR A PUBLIC PURPOSE (FUTURE ROAD WIDENING WANNEROO ROAD)[.]
It is clear when one compares the deposited plan with the reservation and zoning map under the MRS reproduced at [9] above that Lot 140 comprises the part of Lot 8 which is reserved for 'Primary Regional Roads' under the MRS and that Lot 141 comprises the part of Lot 1 which is reserved for 'Primary Regional Roads' under the MRS. It is conversely clear from the same comparison that Lot 40 and Lot 41 are the parts of Lot 8 and Lot 1, respectively, which are not reserved under the MRS.
The deposited plan is, therefore, entirely inconsistent with the inference that the Scuttis invite the Tribunal to draw. Rather, the deposited plan shows that the Commission was not, in 2018, seeking to acquire the whole of Lots 1 and 8, but rather (only) the reserved land, for future road widening. Furthermore, and significantly, the deposited plan was lodged by the Commission with Landgate to facilitate the acquisition of the reserved land (only) for road widening during the same month (January 2018) that:[55]
… [T]he Commissioner [of] Main Roads approached the [Scuttis] with regard to a proposal to resume the whole of [L]ots 1 & 8 by way of either a s 168 agreement to take or a taking on an involuntary basis under the [LA Act]. …
[55] Agreed facts [38].
Thus, in the very same month that the Commissioner of Main Roads was seeking to acquire the whole of Lots 1 and 8 from the Scuttis, the Commission was facilitating the acquisition by it of the reserved land (only).
A third matter referred to by the Scuttis in their submissions is that the State Solicitor's Office acts for both the Commission and the Commissioner of Main Roads.[56] However, it was not submitted that the same solicitor or solicitors in that Office act for both the Commission and the Commissioner of Main Roads. Furthermore, and in any case, the fact that the two authorities are represented by the State Solicitor's Office does not mean that the two authorities' purposes are the same. As discussed below, the Commission and the Commissioner of Main Roads are separate and distinct legal entities relevantly exercising separate and distinct legislative powers.
[56] Respondents' outline of submissions on costs dated 1 March 2019 [86].
Finally, a general theme expressed throughout the Scuttis' submissions is that the Tribunal should infer that the Commission decided (with the Commissioner of Main Roads) to acquire the whole of Lots 1 and 8, because both of these authorities have had a 'common purpose' to acquire that land for the designated purpose stated on the taking order for the land dated 9 August 2018, namely 'Wanneroo Road and Ocean Reef Road Interchange'.[57] However, although the evidence certainly shows that both the Commission and the Commissioner of Main Roads were at all material times seeking to acquire land for road widening at the intersection of Wanneroo Road and Ocean Reef Road, there is no cogent evidence before the Tribunal establishing that, after May 2012, the Commission was seeking to acquire the whole of Lots 1 and 8 for that purpose, but rather the evidence clearly indicates that the Commission was, from 25 June 2014, seeking to acquire (only) the part of that land which is reserved for 'Primary Regional Roads' under the MRS.
[57] Supplementary bundle of documents (Exhibit 4) pages 40 and 46.
Thus, the evidence pointed to by the Scuttis does not establish the inference they invite the Tribunal to draw. The Scuttis' submission is also inconsistent with the agreed fact that, in January 2018, 'the Commissioner [of] Main Roads [and not the Commission] approached the [Scuttis] with regard to a proposal to resume the whole of [Lot 1 and Lot 8] …'[58] and evidence in Ms Rowley's affidavit that, in March 2018, she 'met with Main Roads at their request to discuss their desire to acquire all of [Lot 1 and Lot 8]'.[59]
[58] Agreed statement of facts (Exhibit 1) [38].
[59] Affidavit of Linda Elizabeth Rowley sworn on 18 January 2019 (Exhibit 3) [18] (emphasis added).
Furthermore, as Ms Dias submits, the Commission is a separate and distinct legal entity and relevantly exercised separate and distinct legislative powers to the Commissioner of Main Roads. The Commission is established under s 7 of the PD Act and relevantly exercised power under s 187(1) of the PD Act to elect to acquire the reserved land, instead of paying compensation for injurious affection, and commenced these proceedings under s 188(3)(b) of the PD Act for a determination by the Tribunal of the value of the reserved land for the purpose of determining the price at which that land may be acquired by the Commission under s 187(3) of the PD Act. In contrast, the Commissioner of Main Roads is a body corporate established under s 9 of the Main Roads Act 1930 (WA) (MR Act) and relevantly has powers, under s 16 of the MR Act, to 'construct all highways or main roads, and do all things necessary for or incidental to the proper management thereof' and, under s 29(1)(b) of the MR Act, to 'compulsorily acquire the land under the powers contained in and in accordance with the procedure prescribed by Part 9 of the [LA Act]'.
Consequently, I do not accept the Scuttis' submission that the Commission and the Commissioner of Main Roads are 'of the same ilk [and] one and the same indivisible going towards the same purpose'[60] or that 'the taking order is the action of the [Commission]'.[61]
[60] ts 22, 21 May 2019.
[61] ts 23, 21 May 2019.
Furthermore, I am not satisfied, as the Scuttis submit, that all of the consultants' fees which they seek recovery of from the Commission, by way of an order for costs, were in fact rendered 'useless',[62] simply because the land to be valued is now the whole of Lots 1 and 8 and the date of valuation is now 16 and 22 May 2018, rather than 25 June 2014. There is no evidence before the Tribunal showing that there was any change in the factual circumstances or the planning framework concerning Lots 1 and 8 between the two valuation dates. The work done by Hindley & Associates, Cardno and Rowe Group, as to the highest and best use of the land for valuation purposes, to inform the valuation, could, therefore, be utilised for the purposes of a fresh valuation as at May 2018. Furthermore, work done by Rowe Group in relation to informing the valuer as to the planning framework could also be utilised. Indeed, although the valuation itself would have to be redone, as at the new valuation date and so as to determine the value of the whole of Lots 1 and 8 (rather than just the reserved land), it is likely that at least some of the work done by the valuer could be utilised for the purposes of the fresh valuation. If the factual circumstances of the land and the planning framework that applies to it has not changed, then those parts of the valuation report setting that out could be reused. Furthermore, insofar as work done by the valuer for the purposes of the valuation of the reserved land as at 25 June 2014 could not be reused for the purposes of the valuation of the whole of Lots 1 and 8 as at 16 and 22 May 2018, the Land Acquisition Manager of Main Roads WA stated in an email to Ms Rowley on 3 April 2018 that 'Main Roads is willing to reimburse the reasonable cost of the [Scuttis'] revised valuation to reflect the present date'.[63]
[62] ts 16, 21 May 2019.
[63] Agreed bundle of documents (Exhibit 2) page 103.
In my view, both the Commission and the Scuttis acted reasonably in the conduct of these proceedings. In particular, after the initial (and only) directions hearing, and the preparation and filing by the Scuttis of the s 50 application, these proceedings were periodically adjourned, by consent, to enable the determination in DR 470 of 2015 (and ultimately on appeal) of the issue as to whether the classified POS land is injuriously affected under DPS 2. Furthermore, once the Scuttis and the Commissioner of Main Roads entered into the s 168 agreements, and the taking orders were registered in relation to Lot 1 and Lot 8, the parties jointly and reasonably came to the view that the proceedings were rendered unnecessary and without purpose.
Furthermore, in the circumstances of this case, the withdrawal of the proceedings by the Commission does not reflect any change of position on its part. Rather, it was the only sensible consequence of the acquisition of the whole of Lots 1 and 8 by the Commissioner of Main Roads.
For the reasons set out above, I have not been satisfied by the Scuttis (who bear the onus) that it would be fair and reasonable that they should be reimbursed by the Commission for the costs they incurred in these proceedings, including expenses resulting from the matter because of which these proceedings were brought. Moreover, I have not been satisfied by the Scuttis that the Commission's conduct in connection with these proceedings has impaired the attainment of the Tribunal's objectives to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality and technicality as is practicable, and to minimise the costs to parties. I am satisfied that the Commission acted reasonably in commencing and conducting these proceedings. Furthermore, I am not satisfied, on the evidence before the Tribunal, that the Commission made a decision, in 2018, to compulsorily acquire the whole of Lots 1 and 8. Rather, the evidence before the Tribunal clearly shows that it was the Commissioner of Main Roads (and only the Commissioner of Main Roads) who decided to compulsorily acquire the whole of Lots 1 and 8 and, for that purpose, approached the Scuttis in January 2018 and entered into the s 168 agreements with the Scuttis in May 2018. At all relevant times, from 25 June 2014, when the Commission elected to purchase the reserved land, instead of paying compensation for injurious affection, the Commission's intention was to acquire (only) the reserved land (and not the whole of Lots 1 and 8).
Consequently, in the circumstances of this case, the Tribunal's discretion under s 87(2) should be exercised to dismiss the Scuttis' application for the payment of their costs by the Commission. In the circumstances of this case, the fair and reasonable outcome in relation to costs is that each party should bear its own costs of these proceedings.
What amount of costs should be fixed or assessed?
As I have determined that a costs order should not be made in the circumstances of this case, the issue as to the amount of costs which should be fixed or assessed does not arise. However, for completeness and because this case provides a useful opportunity to restate the Tribunal's approach to costs assessment, I will address the issue as to the amount of costs that would have been fixed or assessed had a costs order been made in this case.
As indicated earlier, on an assessment of costs in this Tribunal:[64]
[T]he preferable approach is not to look at what has actually been charged to the client, but rather what reasonable allowance should be made, taking a robust and broad brush approach, for the work necessarily done to bring the proceedings to a conclusion.
[64] Medical Board of Australia and Costley at [66].
The Tribunal has consciously adopted a 'stringent approach to costs' in order to maintain proportionality between the subject matter of the proceedings and the costs associated with the proceedings, and to minimise the costs incurred by all participants.[65] In J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) the Tribunal said the following at [38]:
The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. The Tribunal strives to ensure that its procedures are proportionate to the nature of the matters in issue. On occasions, matters before the Tribunal are difficult and complex, sometimes involving lengthy hearings. This is not such a matter. 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 representatives of parties before the Tribunal will approach a proceedings [sic] in a way that minimises costs to their clients. If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order.
[65] Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd at [35].
The same approach is adopted by the Tribunal in relation to assessment of costs for experts' fees. As the Tribunal said in Moftah and APG Homes Pty Ltd [2013] WASAT 23; (2013) 84 SR (WA) 131 at [13]:[66]
… The Tribunal will exercise its discretion so as to further the objectives of the Tribunal of providing an informal, flexible and inexpensive means of resolving disputes. This involves considerations of proportionality between the amount of costs and the nature and magnitude of the dispute. …
[66] See also Winterbourn and Western Australian Planning Commission [2013] WASAT 72 at [47]-[55].
As indicated earlier, the Scuttis seek the sum of $51,868.70 (including GST) 'at SAT rates' for legal fees. The maximum rate for a Senior Practitioner[67] prescribed in cl 5 of the Legal Profession (State Administrative Tribunal) Determination 2012 (which operated from 1 January 2013 to 31 December 2014)[68] was $374 per hour and the maximum rate for a Senior Practitioner prescribed by cl 5 of the Legal Profession (State Administrative Tribunal) Determination 2014 (which operated from 1 January 2015 to 30 June 2016)[69] was $396 per hour. Had a costs order been made in this case, in my view, reasonable legal fees would have been allowed as follows, applying the relevant maximum hourly rate for a Senior Practitioner under the SAT Determination at the time:
[67] A Senior Practitioner is a practitioner admitted for five years or more.
[68] Clause 2 of the Legal Profession (State Administrative Tribunal) Determination 2012 and cl 2 of the Legal Profession (State Administrative Tribunal) Determination 2014.
[69] Clause 2 of the Legal Profession (State Administrative Tribunal) Determination 2014 and cl 2 of the Legal Profession (State Administrative Tribunal) Determination 2016.
Expenditure item
Number of hours
Allowance (including GST)
Preparation and lodgement of grouped dwellings development application
4 hours
$1,496 (at $374 per hour)
Preparation and lodgement of claim for injurious affection
2 hours
$748 (at $374 per hour)
Commissioning and reviewing consultants' reports to inform valuation and commissioning and reviewing valuation report for reserved land
12 hours
$4,752 (at $396 per hour)
Reviewing and responding to Commission's offers of land value, including making counter-offer
2 hours
$792 (at $396 per hour)
Preparation for and attendance at initial directions hearing in these proceedings
2 hours
$792 (at $396 per hour)
Preparation and filing of s 50 application
4 hours
$1,584 (at $396 per hour)
Total
$10,164
In relation to consultants' fees, the amounts sought for the architects Meyer Shirecore ($5,500) and for the traffic consultants Cardno ($11,803) appear to be reasonable for the work involved in the grouped dwellings development application and, in the case of Cardno, further work to inform the assessment of highest and best use. The amount sought for the work done by Hindley & Associates ($10,789.50) appears to be reasonable for the work involved in development of the concept of highest and best use of the land. However, the amount sought in relation to Rowe Group ($51,525.17) is excessive. This is in part because, as Ms Rowley said, this amount relates to both 'the planning justification, and the contact with the [City] with regard to the progression of [both] development applications',[70] whereas the 'triggering event' for the compensation claim for injurious affection with respect to the reserved land was the determination of the grouped dwellings development application only. Had a costs order been made in this case, a reasonable allowance for the planning justification and contact with the City in relation to the grouped dwellings development application and a planning report to support the valuation would be approximately $16,500 (inclusive of GST).
[70] ts 31, 21 May 2019.
The invoices from Opteon Property Group indicate that the consultants' fees paid to that firm ($24,530) is based on 30 hours of a '[Licensed] Valuer' at $330 per hour and 32 hours of a 'Director' at $440 per hour.[71] In my view, 62 hours, which equates to one-and-a-half working weeks, is excessive for a valuation report. Had a costs order been made, a reasonable allowance would be 30 hours at the rate of a licensed valuer ($9,900).
[71] The total fees should, in fact, have been $23,980 for the hours and rates claimed.
Finally, the 'Other Fees', being the fees charged for lodgement of the grouped dwellings development application, was a necessary expense in order to be able to make the claim for compensation for injurious affection. If a costs order had been made, I would have allowed that amount.
Therefore, had a costs order been made, I would have assessed costs at $10,164 for legal fees, $54,492.50 for consultants' fees and $11,902 for other fees (inclusive of GST), making a total of $76,558.50.
Conclusion
The application by the Scuttis for the payment by the Commission of their costs of these proceedings should be dismissed. I therefore make the following order:
1.The respondents' application for the payment by the applicant of their costs is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
Associate to the Honourable Judge Parry
28 OCTOBER 2019
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