Cann and City of Fremantle

Cann was a review by Senior Member Dr Willey in the Tribunal of the City of Fremantle decision to issue a Direction Notice to Mr Cann to alter a development by fixing vertical screening incorporating horizontal louvres to non-compliant upper-level windows. 

The Senior Member ultimately dismissed the application for review on the basis that the Tribunal lacked jurisdiction. This was because the Direction Notice did not comply with the mandatory requirements of the Planning and Development Act 2005 (WA) in terms of providing the minimum amount of time for the Applicant to comply.

The Tribunal’s review jurisdiction is only enlivened when a valid reviewable decision is made. The Direction Notice in Cann did not meet statutory requirements and the Senior Member was therefore not satisfied that the Tribunal’s jurisdiction had been properly engaged.

Costs in the Tribunal

Under s87(1) of State Administrative Tribunal Act 2004 (WA) (SAT Act) the statutory presumption is that each party will bear their own costs in a planning review before the Tribunal. However, under s87(2) the Member retains a discretion to award costs if he or she considers it appropriate.

The circumstances in which the Tribunal will order costs are not prescribed, however the factors include where a party:

• has contributed to costs being incurred unnecessarily by its unreasonable or inappropriate conduct;
• has been found to be untruthful in its dealings with the other party or the Tribunal;
• has a case that is shown to be weak or without merit; or
• has been required to commence the proceedings in order to establish an objectify clear entitlement.

The Tribunal may also order that a party pay for the costs of the proceedings incurred by the Tribunal itself. Section 88 of the SAT Act allows the Tribunal to make such an order when:

• the proceeding was vexatious or frivolous;
• a party did not genuinely participate in the original decision;
• a proceeding was dismissed for want of prosecution; or
• the proceedings were conducted in a way to disadvantage the other party.

Costs order in Cann

The City of Fremantle (Respondent) in Cann sought costs against Mr Peter Cann (Applicant) in the amount of $4,801.50, being costs that it says were thrown away by the Applicant's conduct throughout the primary proceeding.

The Tribunal in Cann reviewed when costs could be ordered, and considered the High Court judgment in Oshlack v Richmond River Council (1998) 19 CLR 72 in which Gaudron and Gummow JJ stated the following in relation to the scope of a discretion to award costs:

“There is no absolute rule with respect to the exercise of the power conferred by a provision such as s69 of the [Land and Environment Court Act 1979 (NSW)] that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party.”

The Senior Member considered it follows that the Tribunal’s power to award costs is not displaced by the fact that the Member ultimately determined that the Tribunal in Cann did not have jurisdiction to determine the review application.

The Senior Member noted that in Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 Senior Member Parry (as he then was) made a costs order against the respondent in circumstances where the Tribunal held it had no jurisdiction in relation to the applicant's review.

The Senior Member observed that it was reasonable to expect that applicants who engage the Tribunal’s review jurisdiction should do so diligently, conscientiously, and respectfully. Further, the Senior Member observed that the Applicant’s conduct of his review in Cann ‘stands in stark contrast to those reasonable expectations’.

The Senior Member found it necessary at [159] to [163] to comment on the Applicant’s conduct in the proceedings, including:

• he has been a very unhelpful litigant who, time and again, sought to delay the progression and finalisation of these matters;
• due in large part to his conduct, these reviews have entailed 28 direction hearings;
• the matter was listed for final hearing on four occasions and vacated three times at short notice due to [new] solicitors being recently instructed; and
• his conduct has, at times, been disrespectful and has impeded the Tribunal from achieving its objectives pursuant to s9 of the SAT Act. The resources of the Tribunal and those of the Respondent have, at some level, been wasted.

The Senior Member found the costs thrown away by the Respondent resulted from the Applicant’s unexplained failure to attend a mediation and directions hearings, his lack of diligence in complying with Tribunal orders, as well as his late engagement of legal representation shortly before a final hearing.

Because of the Applicant’s overall (and repeated) conduct, the Senior Member found it was appropriate that he pay the Respondent’s costs fixed in the amount of $4,161.30.

The Senior Member found that the costs sought by the Respondent were reasonable, proportionate and appropriate. However, the Member elected to apply the rate for a Senior Practitioner set out in the Legal Profession (State Administrative Tribunal) Determination 2022 (being $429 x 9.7 hours) to come to the applicable total.

An order was made that the Applicant pay these costs within 60 days of the date of the order.

Lessons for litigants

The expectation is that the parties before the Tribunal will act diligently, conscientiously, and respectfully.

The general presumption is that each party will bear their own costs in a planning review before the Tribunal. However, the Tribunal may make a costs order if, amongst other things, the conduct of a party contributed to costs being incurred unnecessarily by its unreasonable or inappropriate conduct.

Further, the Tribunal may make a costs order in a planning review based on the conduct of a party, irrespective of whether or not the Tribunal determines it has jurisdiction to determine the matter.

Further information / assistance regarding the issues raised in this article is available from the authors, Anne Wood, Partner, Philip Mavor, Special Counsel or your usual contact at Moray & Agnew.