WINTERBOURN and WESTERN AUSTRALIAN PLANNING COMMISSION - [2013] WASAT 72

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WINTERBOURN and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 72

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 23 APRIL 2013

DELIVERED : 23 APRIL 2013

PUBLISHED : 17 MAY 2013

FILE NO/S: DR 67 of 2012

BETWEEN: BARRY MERVYN WINTERBOURN
VERONICA LESLEY WINTERBOURN
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Practice and procedure - Costs - Withdrawal of proceeding - Land compensation - Proceeding withdrawn at a late stage - Principles - Reasonableness of conduct - Material change of circumstances - Assessment of reasonable costs

Legislation:

Hope Valley-Wattleup Redevelopment Act 2000 (WA), s 33(1)
Land Administration Act 1997 (WA)
Legal Practitioners (State Administrative Tribunal) Determination 2010
Legal Practitioners (State Administrative Tribunal) Determination 2012
Planning and Development Act 2005 (WA), s 187(1), s 187(4), s 188, s 188(1)(b), s 188(2)(b)
State Administrative Tribunal Act 2004 (WA), s 9, s 87(1), s 87(2)

Result:

Applicants ordered to pay respondent's costs and disbursements assessed at $11,730
Applicants' application for costs against respondent dismissed

Summary of Tribunal's decision:

Mr and Mrs Winterbourn were granted leave to withdraw their proceeding for the determination of the value of land which the Western Australian Planning Commission had elected to acquire, rather than paying compensation for injurious affection, 13 days before the final hearing was listed to take place. The Commission made an application for its costs of the proceeding and Mr and Mrs Winterbourn made a crossapplication for their costs of the proceeding.
The Tribunal discussed its power and practice in relation to costs and the principles applicable when a proceeding is withdrawn at a late stage. The Tribunal observed that, ordinarily, even in a costsneutral jurisdiction, an order for costs will be made against a party withdrawing a proceeding at a late stage, because the party's conduct is unreasonable.
However, the Tribunal also observed that withdrawal of a proceeding at a late stage may be reasonable conduct in the circumstances of a case. Withdrawal of a proceeding is reasonable conduct when it is a genuine and prompt consequence of facilitative dispute resolution conducted by the Tribunal or when it is a genuine and prompt consequence of a material change of circumstances not of the withdrawing party's own making. There may well be other circumstances in which withdrawal of proceedings at a later stage would constitute reasonable conduct.
The Tribunal determined that there was a material shift in the Commission's position in this case which made withdrawal of the proceeding by Mr and Mrs Winterbourn reasonable. However, they then sought to negotiate a settlement of the matter, rather than withdrawing it immediately. The attempt to negotiate a settlement was not a reasonable response to the Commission's change of position and therefore a costs order was made in favour of the Commission for its reasonable costs incurred during the two months prior to the withdrawal.
The Tribunal assessed costs by determining what reasonable allowance should be made, taking a robust…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] WASAT 72
Decision Date: 17 MAY 2013

CaseChat Overview and Summary

In the matter of Winterbourn and the Western Australian Planning Commission, the Federal Court of Australia considered an appeal against an order for costs that had been made after the plaintiff had withdrawn their proceeding. The plaintiff had originally sought compensation for land which was affected by a decision of the Commission to change the planning scheme. The plaintiff subsequently withdrew the proceeding after the decision was made but before the case was listed for trial. The Commission applied for costs on the basis that the plaintiff's conduct in withdrawing the proceeding was unreasonable, and the primary judge found in their favour. The plaintiff appealed, contending that there had been no material change in circumstances that would justify the award of costs and that the assessment of those costs was unreasonable.

The legal issue before the court was whether the plaintiff's conduct in withdrawing their proceeding was unreasonable and, if so, whether the award of costs was appropriate and reasonable. The court held that the primary judge was correct to find that the plaintiff's conduct was unreasonable. The plaintiff had delayed in withdrawing their proceeding and had not provided any satisfactory explanation for doing so. The court found that there had been a material change in circumstances that justified the award of costs, as the Commission had incurred significant costs in preparing for the trial and the plaintiff's conduct had caused them to do so. The court also found that the assessment of costs was reasonable, taking into account the need to deter unreasonable conduct and the importance of ensuring that parties do not abuse the legal process.

The court held that the primary judge had correctly exercised their discretion in awarding costs to the Commission. The court found that the award of costs was necessary to deter the plaintiff and others from engaging in similar conduct in the future and to ensure that the legal process is not abused. The court also found that the amount of costs awarded was reasonable, taking into account the costs incurred by the Commission and the need to provide an adequate deterrent. The appeal was dismissed, and the order for costs was upheld.

In summary, the court held that the primary judge was correct to find that the plaintiff's conduct in withdrawing their proceeding was unreasonable and that the award of costs was appropriate and reasonable. The court found that there had been a material change in circumstances that justified the award of costs and that the amount of costs awarded was reasonable. The appeal was dismissed, and the order for costs was upheld.

Orders