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Practice and procedure - Costs - Withdrawal of proceeding - Land compensation - Proceeding withdrawn at a late stage - Principles - Reasonableness of conduct - Material change of circumstances - Assessment of reasonable costs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The Tribunal discussed its power and practice in relation to costs and the principles applicable when a proceeding is withdrawn at a late stage.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 and broad brush approach, for the work that was necessary during the two months.  The Tribunal noted that the valuation expert witnesses to be called by the Commission charged over $27,000 for about 100 hours of work in reviewing witness statements and drafting responses during this period.  This was significantly excessive in the context of a costs assessment in SAT proceedings and the Tribunal awarded only $6,300 plus GST for experts' fees.  The Tribunal also awarded $4,800 in legal fees which was the amount sought for this period and was reasonable. 

Finally, the Tribunal determined that there was no basis for a costs order against the Commission in the circumstances of the case and dismissed Mr and Mrs Winterbourn's cross­application for costs. 

The Tribunal subsequently published written reasons based on the transcript of its oral reasons which was edited to correct errors in transcription and for clarity.

Category:    B

Representation:

Counsel:

Applicants:     Mr J Graham

Respondent:     Ms CA Ide

Solicitors:

Applicants:     Cornerstone Legal

Respondent:     State Solicitor for Western Australia

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

Clifford and Shire of Busselton [2007] WASAT 89 (S); (2007) 52 SR (WA) 58

J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242

Medical Board of Australia and Costley [2013] WASAT 2

REASONS FOR DECISION OF THE TRIBUNAL: 

Application and cross­application for costs

1. On 6 February 2013, 13 days before the final hearing in this matter was listed to take place, I granted Mr Barry Winterbourn and Mrs Veronica Winterbourn's application for leave to withdraw this proceeding and ordered that the proceeding was withdrawn subject to the determination of a foreshadowed application for costs by the Western Australian Planning Commission.

2. Mr and Mrs Winterbourn advised the Commission that they would be seeking leave to withdraw the proceeding on 1 February 2013, 18 days prior to the final hearing.

3. On 6 March 2013, the Commission filed and served its application for an order that Mr and Mrs Winterbourn pay its costs of the proceeding, as costs thrown away as a result of the withdrawal, in the sum, ultimately, of $90,231.71.

4. Although they did not foreshadow it at the time when they sought leave to withdraw the proceeding, in their written submissions filed on 4 April 2013, Mr and Mrs Winterbourn made a cross­application for costs in the sum of $55,979.50.

5. As costs applications are so unusual in the Tribunal, the Tribunal's usual practice is to, in effect, grant leave to reopen proceedings to entertain an application for costs, at least where the application for costs is made promptly after the determination or withdrawal of the proceeding.  The Commission did not oppose the hearing of Mr and Mrs Winterbourn's application for costs.  Furthermore, in this case, although the cross­application was made eight weeks after the proceeding was withdrawn, it was made prior to the determination of the issue of costs as sought by the Commission.  In these circumstances leave should be granted to entertain the cross­application for costs and both applications are being determined together.

Background

1. The background to the costs applications can be briefly stated and is not in dispute.

2. On 12 May 2009, Mr and Mrs Winterbourn lodged a development application with the Commission under the Hope Valley-Wattleup Redevelopment Act 2000 (WA) (Redevelopment Act), for approval to construct a greenhouse structure as part of a nursery development on their land in Wattleup. On 4 September 2009, the Commission refused the development application. On 3 March 2010, Mr and Mrs Winterbourn made an injurious affection claim in respect of the land. On 15 June 2010, the Commission elected to purchase the land under s 33(1) of the Redevelopment Act.

3. That section states that certain provisions of the Planning and Development Act 2005 (WA) (PD Act) in relation to compensation and acquisition of land apply to land in the redevelopment area, including s 187(1) of the PD Act, which enables the responsible authority to elect to acquire land which is injuriously affected instead of paying compensation for injurious affection; s 187(3) of the PD Act, which provides that when the responsible authority and the owner are unable to agree as to the price to be paid, the price is to be determined in accordance with s 188 of the PD Act; and s 188, which enables the value of the land to be determined by stated methods, including by the Tribunal on the application of the owner of the land for a determination of the value.

4. On 3 March 2012, Mr and Mrs Winterbourn applied to the Tribunal for it to determine the value of the land.  As is usual, the matter was referred to mediation but that process did not resolve the dispute as to value and the matter was ultimately listed for final hearing to commence on 19 February 2013 for two days.  The parties were ordered to file and exchange statements of issues, facts and contentions and witness statements, which they did.  Each party filed witness statements from two expert land valuers and the Commission also filed town planning evidence.

5. On 1 February 2013, when they advised the Commission that they would seek leave to withdraw the proceeding, Mr and Mrs Winterbourn withdrew their claim for injurious affection. In consequence, under s 187(4) of the PD Act, the Commission's election to purchase the land ceased to have effect.

The Tribunal's power and practice in relation to costs

1. As section 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) indicates, and as the Tribunal has said in many cases, the Tribunal is a generally no-costs or costs-neutral jurisdiction in which parties usually bear their own legal costs and disbursements, but will not usually be ordered to pay the costs and disbursements of another party. This is to be contrasted with the usual so-called 'rule as to costs' in Australian courts and tribunals under which, generally, costs follow the result.

2. However, as has also been said in many cases, s 87(2) of the SAT Act confers a broad discretion upon the Tribunal to order a party to pay the costs of another party. The Tribunal has developed and established practices in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in various areas of its jurisdiction, having regard to policy considerations relevant to the particular jurisdiction.

3. In land compensation proceedings, the practice was articulated by the Tribunal's inaugural President, Barker J in Clifford and Shire of Busselton [2007] WASAT 89 (S); (2007) 52 SR (WA) 58 (Clifford).  Speaking in relation to land compensation proceedings under the LandAdministration Act 1997 (WA) (LA Act), in terms which are equally applicable to proceedings under s 188 of the PD Act, his Honour said at [54] ­ [57]:

   54Ordinarily, where a citizen feels obliged to commence a proceeding in the Tribunal for compensation under the LA Act they are dissatisfied with and have rejected an offer of compensation made by a resuming authority. If they succeed in their claim in the Tribunal, it would seem fair and reasonable that the Tribunal should ordinarily exercise its discretion under s 87(2) and award the applicant the costs of those proceedings. This is because, putting it simply, ordinarily if the applicant succeeds, it will have been demonstrated to the Tribunal that the applicant was not offered fair compensation by the resuming authority and was obliged to commence and maintain the proceedings in order to gain justice. It would seem unreasonable for an applicant to have to fight to gain fair compensation only to have to deduct from the compensation the costs incurred in obtaining the award.

   55Of course what should be recognised as 'success' in every case requires some further consideration.  If the applicant does not succeed in obtaining a compensation award following a hearing that betters the original compensation offer made by the resuming authority, it can hardly be said that the applicant was successful in the proceedings.  Indeed it could be said in such a case that the applicant has maintained an unjustified proceeding and so should have to pay the respondent its costs for the trouble and expense of defending the claim.

   56Either way it really is a question of fairness:  on the one hand, in the case of a successful applicant it is fair that they should ordinarily receive their costs when they are put to the trouble and expense of proving that their claim is right, over the reticence of the resuming authority to recognise the rightness of the claim; on the other hand, it is fair that an applicant who does not establish that a resuming authority's offer was not right, should have to pay the resuming authority's costs given the trouble and expense to which they have put the resuming authority.

   57It should also be said that an award of costs in such circumstances will have the beneficial effect of discouraging unjustified proceedings.

4. In this case, as the matter was ultimately withdrawn prior to hearing, it cannot be determined which party would have 'succeeded' in the relevant sense discussed in Clifford.  However, it is relevant to the exercise of discretion as to costs to note that the parties would necessarily have approached the proceeding on the basis that, in this type of proceeding, a costs order would be likely, depending on the value of land as determined by the Tribunal at the hearing.

Principles in relation to costs where a proceeding is withdrawn at a late stage

1. The Commission submits that Mr and Mrs Winterbourn should be ordered to pay its costs of the proceeding, because they withdrew the case at a very late stage, after all of the evidence had been prepared and filed at considerable cost, and in circumstances where that evidence will be of no utility in the future because it concerned the planning framework and valuation of the land at a particular historical point in 2010; whereas any future acquisition of the land will require an assessment of the planning framework and valuation of the land at a future date of acquisition or at the deemed date of acquisition, if the Commission elects to purchase the land, rather than paying compensation for injurious affection.

2. As noted earlier, Mr and Mrs Winterbourn advised the Commission that they would seek leave to withdraw the proceeding at a very late stage of the proceeding, 18 days before the hearing, and after the parties had incurred considerable costs in the preparation and filing of witness statements.  Ordinarily, even in a costs-neutral jurisdiction, an order for costs would be made against a party withdrawing a proceeding in such circumstances, having regard to the guiding considerations of the reasonableness of the conduct and the fairness of the outcome.  This is because, ordinarily, such conduct would reflect an acknowledgement on the part of the withdrawing party that the case was without merit and the other party was put to unnecessary cost in having to defend an unmeritorious proceeding.  Moreover, ordinarily, the conduct of the party withdrawing the proceeding, in commencing the matter and then withdrawing it at a late stage, would be regarded as unreasonable conduct in the circumstances, thereby warranting a costs order.  This would be all the more so in a jurisdiction in which costs orders are usually made following the hearing.

3. However, withdrawal of proceedings at a late stage may be reasonable conduct in the circumstances of a particular case.  There are at least two circumstances in which a late withdrawal is likely to constitute reasonable conduct. 

4. First, where the withdrawal is a genuine and prompt consequence of facilitative dispute resolution conducted by the Tribunal. As is well-known, facilitative dispute resolution, principally mediation, but also directions hearings and compulsory conferences, is a tremendously important method by which the Tribunal seeks to achieve its objectives set out in s 9 of the SAT Act of quick, just, proportionate and inexpensive dispute resolution. A not infrequent outcome of facilitative dispute resolution is the realisation by the applicant that the proceeding should be withdrawn, because it is unlikely to succeed, because a different proposal or approach needs to be developed, or for another reason.

5. Withdrawal in consequence of facilitative dispute resolution conducted by the Tribunal will generally be regarded as reasonable conduct.  It is important also to note that such facilitative dispute resolution in the Tribunal generally occurs at an early stage of proceedings, before substantial costs have been incurred by the parties. 

6. Second, withdrawal at a late stage is likely to constitute reasonable conduct where the withdrawal is a genuine and prompt consequence of a material change of circumstances not of the withdrawing party's own making.  In such a case, withdrawal does not reflect an acknowledgement on the part of the withdrawing party that their case was without merit and their conduct is not unreasonable; indeed, it is a reasonable response to the material change in circumstances. 

7. There may well be other circumstances in which withdrawal of proceedings at a late stage would constitute reasonable conduct, in consequence of which, it would not be fair and appropriate to make a costs order in the exercise of discretion.  It is impossible and inappropriate to attempt to define those circumstances here.  However, they would not ordinarily include a belated realisation or acceptance of the weakness of the withdrawing party's case.

Consideration of the Commission's costs application

1. Mr and Mrs Winterbourn submit, and I find, that the withdrawal in this case was a genuine consequence of a material change of circumstances which was not of their own making.  A significant issue in the proceeding was whether the Hope Valley­Wattleup Redevelopment Scheme (Scheme) should be ignored as part of the 'planning scheme' under s 188(1)(b) of the PD Act. That provision states:

   (1)The value of the land referred to in section 187(3) is to be -

   …

   (b)determined without regard to any increase or decrease, if any, in value attributable wholly or in part to the planning scheme.

2. Broadly speaking, if the Scheme was to be ignored, the land was to be valued on a rural basis; in contrast, if the Scheme was not to be ignored, the land was to be valued on the basis that it had industrial potential.  The difference in value between these two bases of valuation was obviously going to be substantial. 

3. At all material times, Mr and Mrs Winterbourn's position was that the applicable planning scheme was an extension of Rowley Road, as identified in a different planning instrument, and that the Scheme should not be ignored.  Importantly, this position was shared in the valuation report by the Commission's consultant valuer, Mr Keith Wilson, dated 13 July 2010, which was obtained by Mr and Mrs Winterbourn under the Freedom of Information Act 1992 (WA). Mr Wilson valued the land in his 13 July 2010 report at $1.6 million on the basis that the land had industrial potential. The Commission offered Mr and Mrs Winterbourn compensation of $1.6 million on the basis of Mr Wilson's valuation and report.

4. Mr Wilson became one of the Commission's two expert valuation witnesses in the proceeding. His position in his valuation report of 13 July 2010 apparently remained the Commission's position in the proceeding until 9 November 2012, when it filed its statement of issues, facts and contentions. In that document, the Commission asserted, for the first time in the proceeding, that the applicable planning scheme for the purposes of s 188(1)(b) of the PD Act was the Master Plan under the Redevelopment Act.

5. The consequence of the Commission's change of position, if that position prevailed in the proceeding, was that the land would be valued on the basis that it is rural land with no industrial potential.  The land value would therefore be lower.  Furthermore, on 30 November 2012, the Commission filed its witness statements and served the witness statements on Mr and Mrs Winterbourn.  The witness statements of the Commission included two expert valuation reports, one by Mr Wilson, and one by another valuer.  In his witness statement, Mr Wilson valued the land at $1.075 million as rural land and at $1.2 million if it had industrial potential.  Mr Wilson therefore substantially reduced the value of the land, on the assumption that the land had industrial potential, by $400,000, or 25%, and reduced the value of the land on the assumption, now advanced by the Commission, that the land was to be assessed as rural land by $525,000, or almost 33%.

1. As Mr and Mrs Winterbourn submit, this material change of position in the Commission's case meant that they had to consider two things:  first, the risk that the Commission's new planning scheme argument would be successful, substantially reducing the value of the land; second, the possibility that even if they succeeded on that argument, the value of the land would be found to be 25% less than the value originally determined by the Commission's valuer and the amount offered to them by way of compensation prior to their commencement of the proceeding.  As noted earlier, this would be likely to have had consequences in terms of the Tribunal's practice as to costs - to award costs against a land owner who obtains a lesser value determined by the Tribunal than was the subject of the compensation offer by the acquiring authority prior to the commencement of the proceeding.  As Mr and Mrs Winterbourn submit, there was a marked shift in the Commission's position, the scope of the issues in the proceeding, and the risk that they faced if they proceeded to hearing.

2. In my view, it was reasonable for Mr and Mrs Winterbourn to have reassessed whether to proceed to hearing, in light of this material shift in the Commission's position.

3. However, Mr and Mrs Winterbourn did not then withdraw the proceeding; rather, they attempted to negotiate with the Commission and settle the matter.  They made an offer of settlement on 7 January 2013 that was rejected by the Commission.  The Commission made a counteroffer on 17 January 2013.  Mr and Mrs Winterbourn rejected the counteroffer and made a further offer of settlement on 29 January 2013, expiring on 1 February 2013.  The Commission rejected the further offer and made a further counteroffer on 30 January 2013, expiring on 1 February 2013.  As noted earlier, Mr and Mrs Winterbourn advised the Commission that they would seek leave to withdraw the proceeding on 1 February 2013.

4. In my view, the attempts to negotiate a settlement in December 2012 and January 2013 were not a reasonable response to the Commission's change of position, given that the hearing was fast approaching.  Furthermore, the attempt at a negotiated outcome only commenced some five weeks after the witness statements were filed and served.  Mr and Mrs Winterbourn ought reasonably to have withdrawn the proceeding on or about 1 December 2012.

5. In my view, therefore, a costs order should be made in favour of the Commission for its reasonable costs incurred in December 2012 and January 2013.

Consideration of Mr and Mrs Winterbourn's costs application

1. As noted earlier, Mr and Mrs Winterbourn seek an order for costs against the Commission.  They do so on essentially six bases.

2. The first basis is that although they initiated the claim, it was the Commission which elected to purchase the land instead of paying compensation. However, this does not provide a basis for an exercise of discretion as to costs. This will be the case in all such matters under s 188 of the PD Act.

3. The second basis is that the Commission initially offered $1.6 million for the land based on its market value with industrial potential.  However, Mr and Mrs Winterbourn did not accept the offer and instead commenced this proceeding.  In the proceeding, the Commission was represented by the State Solicitor's Office, whereas apparently it was not previously legally represented.  In the proceeding, the Commission was entitled to adopt a different position based on its solicitor's advice.  As in all the litigation, Mr and Mrs Winterbourn took this risk when they commenced this proceeding, having rejected the Commission's initial offer of compensation.

4. Thirdly, Mr and Mrs Winterbourn submit that the Commission refused to confirm its position in the proceeding prior to the exchange of statements of issues, facts and contentions, despite, what they submit, were 'express and repeated requests' for this to occur.  However, the Commission's position was clear at the stage of mediation in the proceeding.  It did not change its position at that stage from Mr Wilson's original report.

5. Furthermore, Mr and Mrs Winterbourn did not press the Tribunal for an order that the Commission file a statement of issues, facts and contentions at an earlier stage of the proceeding.  Had its statement of issues, facts and contentions been filed earlier, the Commission would have required the leave of the Tribunal to amend its statement.  If it had altered its position, it may well have had to pay costs thrown away as a result of the amendment.  However, that is unlikely to have been the whole of the costs of the proceeding.  There is also usually a benefit to parties in not requiring statements of issues, facts and contentions to be filed, and positions thereby to become hardened, at the mediation stage of the Tribunal's proceedings. 

6. Fourthly, Mr and Mrs Winterbourn submit that, at a late stage of the proceeding, and after they had incurred considerable costs, the Commission introduced 'a new planning argument and changed its position which it had previously adopted with respect to the value of the subject land'.  It is submitted that the Commission's conduct in this respect was 'unreasonable and capricious'.  However, given that the statements of issues, facts and contentions were only required to be filed when they were filed, the Commission was entitled to alter its position in the proceeding at that stage, although Mr and Mrs Winterbourn were entitled, as I have found, to have reassessed their own position and withdrawn the proceeding at that point.

7. It is also submitted that the change of position was unreasonable because town planning evidence was apparently only sought in respect of the changed position after the Commission's statement of issues, facts and contentions was filed.  However, it is not suggested that the new position was without merit.  Indeed, concern about the new position prompted the withdrawal of the proceeding.

8. Furthermore, although it is likely that planning evidence would ultimately have been required for the success of the Commission's new position, the change of position is one that could reasonably have been suggested or advised by lawyers experienced in planning and valuation law exercising their own judgment and having regard to the circumstances of the case.  Finally, I note that planning evidence was apparently obtained in support of the new position.

9. Fifthly, Mr and Mrs Winterbourn submit that the Commission's refusal to accept either of their settlement offers was unreasonable and justifies the award of costs.  However, the Tribunal cannot assess whether the rejection by either party of the offers and counteroffers was unreasonable.

10. Finally, Mr and Mrs Winterbourn submit that the counteroffers put by the Commission illustrate that the value of the land was, in fact, significantly more than its witnesses considered to be the case.  However, the Commission's offers of settlement indicate that, in those circumstances, it acted entirely reasonably in an effort to resolve the litigation without the matter going to hearing.  It is to be commended for having sought to resolve the matter in the amounts of compensation offered, rather than regarded as having acted unreasonably.

11. There is therefore, in my view, no basis for a costs order against the Commission in the circumstances of this case.

Assessment of costs 

1. The costs to be assessed in accordance with the order that I have foreshadowed are the Commission's reasonable costs incurred in December 2012 and January 2013.

2. I note in passing that, had I made a costs order as sought by the Commission, I would have determined that a large part of the costs sought in respect of experts' fees was excessive in the context of an assessment of costs in Tribunal proceedings.  As the Tribunal said in J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242 at [38]:

   … 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 … proceedings 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. 

3. In Medical Board of Australia and Costley [2013] WASAT 2 the Tribunal said the following at [66] in relation to costs assessments:

   … In our view, in matters of this nature, the 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.  That is the approach taken by the Tribunal in [Medical Board of Australia and Woollard [2012] WASAT 209 (S)], and, with respect, we consider it a sound basis to approach the assessment of the quantum of costs in vocational matters. It is important that the policy behind the practice of the Tribunal in relation to costs in vocational regulatory matters does not lead to excessive and crushing costs claims beyond what a practitioner might reasonably expect to have to meet if the application against him or her is ultimately successful.

4. In my view, the same principle applies in a costs assessment in relation to land compensation proceedings in which, although there is an expectation that costs will be awarded depending on the valuation determined by the Tribunal, it would be inappropriate and contrary to the Tribunal's objectives to minimise costs to parties, for orders of costs to be 'excessive and crushing' and beyond what an 'unsuccessful' party might reasonably expect to have to meet in Tribunal proceedings.

5. The Commission paid its two valuation expert witnesses about $55,000 for almost 200 hours of work in relation, principally, it appears, to the preparation of their expert witness statements and their review of the other parties' expert witness statements.  As I suggested during the hearing, this translates to five full working weeks for a single person working on nothing else but the valuation in this matter.

6. When I put that to Ms CA Ide, counsel for the Commission, during her submissions, she responded by saying that this was a complex matter. That is no doubt the case. However, having regard to the Tribunal's objectives set out in s 9 of the SAT Act, and in particular, the objective to minimise costs to parties, almost 200 hours of work and $55,000 in experts' fees, when viewed in the context of costs orders in Tribunal proceedings, was manifestly excessive, particularly given that Mr and Mrs Winterbourn filed two substantial witness statements for less than 40% of the cost charged by the Commission's experts (although those costs included, as I have mentioned, the review of the other parties' witness statements as well).

7. I also raised the question of whether two witnesses were necessary at all.  Ms Ide submitted that it was necessary and appropriate and reflects the usual practice of government departments in such matters to check that the primary valuation was reasonable.  This practice is clearly sound and prudent for government authorities, although I am uncertain as to whether two witnesses should ultimately be called.

8. As no particular issue was taken by Mr and Mrs Winterbourn with the fact that two witnesses were to be called by the Commission and as Mr and Mrs Winterbourn proposed to call two witnesses, I will not express any concluded view on the calling of two expert valuation witnesses by a party in valuation cases of this nature, but rather approach the assessment on the basis that it was reasonable to call both witnesses.

9. In the period 29 November 2012 to 20 December 2012, one of the valuers charged $5,750 plus GST for 23 hours of time spent on 'Perusal and analysis of Garmony valuation report, preparation of a draft response report', and during the period 8 January to 31 January 2013, the same valuer charged $10,725 plus GST for 39 hours spent on 'Perusal and analysis of Le­Fevre valuation report, preparation of letter, response to Cornerstone Legal without prejudice offer'.

10. This valuer therefore charged $16,475 for 62 hours of work in reviewing other witnesses' work and draft responses; 62 hours translates to more than one and a half weeks of full­time work.  The other valuer charged $10,587.50 for 38.5 hours of work between 15 November 2012 and 10 January 2013.  Although his tax invoice does not delineate the work he did, presumably, it was the same or substantially the same work as undertaken by his colleague.  This amount also would have included, in all likelihood, some costs in the finalisation of his witness statement in chief.

11. Between the Commission's consultant valuers, they spent approximately two and a half weeks of full­time work reviewing the other side's valuers' work.  This was significantly excessive in the context of a costs assessment in Tribunal proceedings, having regard to the Tribunal's objective that I referred to earlier.

12. In my view, having looked at the expert valuation evidence filed for Mr and Mrs Winterbourn, the Commission's valuers should reasonably have spent no more than about five hours each on the review of each of the two reports.  That is, they should have spent no more than about 10 hours in reviewing the other parties' reports, in anticipation of having to meet for a conferral, which ultimately did not take place, because of the foreshadowed withdrawal and, ultimately, the withdrawal of the proceeding.

13. One valuer charged $250 per hour and the other $275 per hour.  I would therefore assess reasonable experts' fees at $5,250 plus GST.  An allowance should also be made for reviewing the settlement offers made by Mr and Mrs Winterbourn of one hour per valuer per offer, making a total of $6,300 plus GST.

14. In relation to solicitors' costs, during the period December 2012 and January 2013, the matter was worked on by Ms M Payne, the Commission's solicitor, and Ms Ide.

15. Ms Payne, during this period, prepared a responsive statement of Mr Ness and reviewed responses to Mr and Mrs Winterbourn's valuation evidence prepared by the Commission's consultant valuers.  It appears from the Commission's amended summary of costs that Ms Payne spent four times 48 minutes on this work.  She was also conducting conferences with Ms Ide, who was to be counsel in the matter, for a total of two hours during this period.

16. During the same period, Ms Ide was examining documents and performing research for eight hours and 45 minutes as well as conducting the conferences with Ms Payne for two hours. 

17. The total amount of time spent by both Ms Payne and Ms Ide during this period was 16 hours in relation to the matter.  This was reasonable for the work involved and the amount charged per hour, namely, $300 was a reasonable amount for a senior practitioner.  I note that the amount per hour was less than the maximum contemplated in the Legal Practitioners (State Administrative Tribunal) Determination 2010 which applied in December 2012 and the Legal Practitioners (State Administrative Tribunal) Determination 2012, which applied in January 2013.

18. The work undertaken by the solicitors for the Commission translates to $4,800 in legal fees.  The total amount awarded, therefore, by way of costs is $11,730.

Orders

1. For these reasons I make the following orders:

   1.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) the applicants must pay to the respondent costs and disbursements assessed at $11,730 within 28 days.

2.The applicants' application for costs against the respondent is dismissed.

I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE D R PARRY, DEPUTY PRESIDENT