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									LAJ Trust Pty Ltd v Hobart City Council [2007] TASRMPAT 14 (18 January 2007)
File No: 188/04 P, J 14/2007 82 Hampden Road Battery Point - Partial demolition – alterations – extensions additional dwelling - Costs
BETWEEN LAJ Trust Pty Ltd AND Hobart City Council Respondent Appellant

This was an application by the party joined for an order that its costs of the appeal be paid by the appellant. Submissions were made in writing without a hearing.

DECISION
1. In a letter dated the 21st June 2004 (but transmitted by facsimile to the Tribunal on the 27th July 2004) Montague S East advised, inter alia, that “after discussions with [his] client Mr Keith Pybus, [he was] withdrawing the appeal on his behalf…”. In fact Montague S East’s client in this matter was LAJ Trust Pty Ltd and not Mr Keith Pybus, but the parties, and the Tribunal, have proceeded on the basis that this letter effected a withdrawal of the appeal on behalf of the Appellant. Subsequently an application was made by the party joined, Mr D Stewart, for an order that the Appellant, LAJ Trust Pty Ltd, pay his costs of the appeal. The application was made pursuant to Section 28 of the Resource Management and Planning Appeal Tribunal Act 1993 as it then existed. Subsequent to that application, but before its determination, the section was significantly amended, as a consequence of, and responsive to, a decision of the Supreme Court in Hardman v. Ward [2004] TASSC 74. It is clear that the issue of costs in this case is to be determined by the relevant statutory provision as it is now and not as it was at the time the application was made (see for example Galvin v. Forests Commissioner of Victoria [1939] VLR 284 and Jackman v. Dandenong Sewerage Authority (No 2) [1967] 20 LGRA 413). Section 28 provides: "Costs 28 (1) Each party to an appeal is to pay its own costs.

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(2)

However, the Appeal Tribunal may order a party to an appeal to pay all or part of the costs of another party to the appeal if the Appeal Tribunal is satisfied that it is fair and reasonable to do so. For the purposes of subsection (2), the Appeal Tribunal may take into account any of the following matters: (a) whether the appeal appears to the Appeal Tribunal to have been instituted merely to delay or obstruct; whether in the Appeal Tribunal's opinion a party has raised frivolous or vexatious issues; the relative merits of the claims made by each of the parties; whether in the Appeal Tribunal's opinion a party has unnecessarily or unreasonably prolonged the appeal or increased the costs of it;

(3)

(b)

(c)

(d)

(e)

whether a party has failed to comply with a direction or order of the Appeal Tribunal without reasonable excuse; whether a party has failed to comply with any relevant law or planning scheme; the nature, complexity and outcome of the appeal; the capacity of the parties to meet an order for costs; any other matter the Appeal Tribunal considers relevant.

(f)

(g) (h)

(i)

6.

It will be seen that the starting point for consideration of such an application is a statutory presumption that each party is to pay its own costs. The Tribunal may depart from this presumption if it is satisfied that it is fair and reasonable so to do. In determining whether or not it is fair and reasonable to make some other type of order the Tribunal “may take into account” a variety of matters articulated in subsection (3). Mr Stewart points to subparagraphs (c), (d), (e) and (g) as justifying the order he seeks. So far as subparagraph (c) is concerned it is submitted, with some force, that the respondent and parties joined were wholly successful in the sense that the appellant was wholly unsuccessful having withdrawn his appeal. There is some force in this submission. It is submitted on behalf of Mr Stewart that the Appeal Tribunal should form the opinion that LAJ Trust Pty Ltd has unnecessarily or unreasonably prolonged the appeal or increased the cost of it. It is said that this state of satisfaction should be

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File No:188/04 P

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reached as a consequence of the fact that the Appellant maintained the appeal “when the clear breaches of the Planning Scheme were clearly identified in the Council’s decision and the impacts on adjoining properties were well identified by the parties joined, by failing to provide information to the parties joined as directed by the Tribunal, by requesting an adjournment of the hearing, by applying to amend the proposal after commencement of the proofs of evidence and by then withdrawing the appeal before the application to amend had been formally considered by the Tribunal.” 10. 11. Again, in the Tribunal’s view there is considerable force in this submission. Similarly there is at least on occasion an identified failure to comply with the direction or order of the Tribunal, viz. failure to provide information to parties joined at the direction of the Tribunal. Mr Stewart points to paragraph (g) but does not articulate any basis upon which it is said that it is relevant to this particular application. Despite several invitations, no substantive response has been received from or on behalf of the Appellant in relation to this application. It seems appropriate to approach this matter therefore on the basis that the matters raised by Mr Stewart are not disputed. This of course is not the end of the matter; it still is necessary for the Tribunal to reach a conclusion that the order sought is justified. But reaching the appropriate level of satisfaction is perhaps easier in the absence of any reasons, at all, being advanced as to why that should not occur. In the circumstances it seems to the Tribunal that it would be fair and reasonable in the circumstances of this particular case to make an order where the unsuccessful Appellant pay the costs of the party joined, Mr D Stewart. The reasons referred to above, advanced by Mr Stewart are both cogent and persuasive. Particularly important, in the Tribunal’s judgment, is the failure of the Appellant to comply with an order of the Tribunal. In all the circumstances the Tribunal is satisfied it is both fair and reasonable to make the order Mr Stewart seeks. There will be an order that the Appellant pay the party joined’s costs of an incidental to the appeal. Such costs, if not agreed, are to be assessed by the Registrar of the Appeal Tribunal. The costs are to be assessed by reference to 90 per cent of the highest scale of the Rules of the Supreme Court 2000 (applicable at 27th July 2004). The costs are to be paid within 7 days of their assessment by the Registrar of the Tribunal.

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Dated this 18 January 2007

SJ Cooper Chairman

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