Practice and procedure ­ Costs ­ Directions hearing necessitated by applicants' failure to comply with orders ­ Prejudice to respondents in preparation for hearing ­ Lack of satisfactory explanation for default ­ Applicants ordered to pay respondent's costs of directions hearing in fixed amount

State Administrative Tribunal Act 2004 (WA), s 24, s 48, s 48(1)(a), s 82(2), s 87, s 87(1), s 87(2), s 88, s 88(1), s 88(3)

Town Planning and Development Act 1928(WA), s 62

In accordance with s 87(2) of the State Administrative Tribunal Act 2004 (WA), the applicants shall pay the respondent's costs of having its solicitors attend the directions hearing on 4 November 2005 in the amount of $300.

Aydogan & Ors v Town of Cambridge [2004] WATPAT 110

Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53

Lakes Action Group Association (Inc) v Shire of Northam [2005] WASAT 185(S)

Randall and Town of Vincent [2005] WASAT 147

1 Mr Salih Aydogan and Mr Kenan Aydogan (applicants) lodged with the State Administrative Tribunal (Tribunal) an application for review of the decision by the Town of Cambridge (respondent) to refuse to grant planning approval for alterations and additions to their house at No 20 Yanagin Crescent, City Beach.

2 At a directions hearing on 30 August 2005 the Tribunal listed the matter for a final hearing on 8 November 2005. The Tribunal also ordered the parties to file and provide to each other by 7 October 2005 their witness statements. The respondent provided the applicants with its witness statements at about that date but received nothing from the applicants. The applicants also failed to provide their Statement of Issues Facts and Contentions by 23 September 2005 as ordered by the Tribunal.

3 The respondent had received no documents by late 3 November 2005 and so applied for a directions hearing at the Tribunal to deal with the matter. The Tribunal scheduled a directions hearing for 4.30 pm the next day, 4 November 2005. Although the applicants did provide documents just before the directions hearing, the Tribunal decided that the final hearing should be vacated and set for a later date to give the respondent the opportunity to properly prepare for the hearing and to give the applicants time to file the documents with the Tribunal.

4 The respondent made an application to be compensated for the costs it incurred as a result of its solicitors having to attend the directions hearing. It said the hearing was only required because of the applicants' failure to comply with the orders of the Tribunal.

5 The Tribunal decided to exercise the discretion in relation to costs available under s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) so as to compensate the respondent for the professional costs of having had its solicitors attend the directions hearing. The applicants have been ordered to pay to the respondent costs set at $300.

6 On 26 April 2005, Mr Salih Aydogan and Mr Kenan Aydogan (applicants) filed with the State Administrative Tribunal (Tribunal), an application for review of the decision by the Town of Cambridge (respondent) to refuse an application for planning approval for alterations and additions to the house at Lot 42 (No 20) Yanagin Crescent, City Beach.

7 The respondent filed with the Tribunal on 18 May 2005, a response to the application, as then required by the Tribunal's rules.

8 Directions hearings were held on 1 June 2005, 5 August 2005 and 30 August 2005. Just prior to the directions hearing of 30 August 2005, a neighbour, Mr Dion Warr made application to the Tribunal to be allowed to make a submission on the matter as provided for under s 62 of the Town Planning and Development Act 1928 (WA) (TPD Act).

9 At the directions hearing of 30 August 2005, the following orders were made (30 August orders):

"1. On or before 16 September 2005, the respondent shall file and serve on the applicants a bundle of documents, properly indexed and paginated being the documents it is required to file under s 24 of the State Administrative Tribunal Act 2004, and any other documents on which it proposes to rely at the hearing of the application.

2. On or before 16 September 2005, the respondent shall file and serve on the applicants a statement of issues, facts and contentions it says arise in relation to the decision under review.

3. By 23 September 2005, the applicants shall file and serve on the respondent its own statement of issues, facts and contentions, setting out ­

(a) by reference to each of the paragraph numbers in the respondent's statement, whether the applicants accepts or rejects the issue, fact or contention identified by the respondent; and

(b) any other issues, facts and contentions it says are relevant to the decision under review.

4. The applicants shall, at the time it files and serves its statement of issues, facts and contentions, file and serve on the respondent a bundle of documents, limited to documents not already provided by the respondent, properly indexed and paginated, on which it proposes to rely at the hearing of the application.

5. The application is set down for a one day hearing commencing at 10.00am on 8 November 2005.

6. Pursuant to s 62 of the Town Planning and Development Act 1928, Mr Dion Warr is granted leave to make a submission to the Tribunal on this matter. Mr Warr is to file and to serve on the applicants and the respondent on or before 7 October 2005 any submission he may wish to make.

7. Each party, that is, the applicants and the respondent, shall by 7 October 2005 file an original and a copy, and shall give one copy to the other party, of a signed statement of evidence by each witness on whose evidence the party is to rely at the hearing.

8. By 7 October 2005 the respondent shall file and serve, in hard and electronic form, without prejudice to its final position in the proceeding, a set of all of the conditions which it will contend at the hearing should be imposed if the Tribunal considers that approval of the application subject to conditions is appropriate ('the draft conditions').

9. By 14 October 2005, the applicants shall file and serve, in hard and (where it can do so) electronic form, a statement identifying any of the draft conditions which it objects to, stating briefly the reason for each objection, and setting out any alternative or additional conditions it will contend at the hearing should be imposed if the Tribunal considers that approval of the application subject to conditions is appropriate.

10. Before or at the commencement of the hearing, the respondent shall file and serve, in hard and electronic form, a document containing those draft conditions it will press at the hearing if the Tribunal considers that approval of the application subject to conditions is appropriate, the fact of and stated reason for objection by the applicants in relation to any of the conditions, and any alternative and additional conditions proposed by the applicants."

10 Pursuant to the orders, the respondent then filed the following:

1. 23 September 2005 ­ Statement of Issues, Facts and Contentions;

2. 7 October 2005 ­ witness statement of Stephen Geoffrey Allerding;

3. 18 October 2005 ­ witness statements of Jeffrey Phillip Dowling, Lance William White, Conrad Todd, Phillip Stuart Porter, and Dion Warr.

11 On 3 November 2005 at 4.35 pm, the solicitors for the respondent sent a letter to the Tribunal, by facsimile, stating:

"This matter is listed for hearing on Tuesday 8 November, 2005.

We write in order to request that the matter be brought on urgently for directions on Friday 4 November, 2005, for the purpose of an application by the respondent to vacate the hearing date.

The reason for the application to vacate is that at the time of writing the Applicants have not provided any witness statements to this office."

12 The solicitors for the respondent attached to their letter copies of a letter they had written to the applicants' solicitors on 1 November 2005 reminding them that the Tribunal had ordered witness statements to be filed and provided to the other party by 7 October 2005 and that none had yet been received from the applicants. The respondent pointed out that it had supplied its witness statements on 6 October 2005 and 17 October 2005 and said that the applicants' delay was prejudicial as it made preparing for the hearing difficult.

13 Also attached was a copy of the applicants' solicitors' reply to the respondent of 2 November 2005, stating that the applicants would return from Malaysia the next day and their statements would then be finalised. It was said the applicants' evidence would:

" ... not differ substantially from the evidence given in the previous appeal.

A Statement was obtained from Steve Pandevski a town planner prior to the changes to the height rules. That statement is being updated but to assist you we enclose a draft of Steve Pandevski's earlier statement. The final statement should be available tomorrow."

14 The applicants' solicitors also asked the respondent for information on the respondent's consideration at the 23 August 2005 council meeting of plans submitted in August 2005 and for comment on ground levels.

15 Tribunal staff contacted the parties' solicitors and advised them that the matter was set down for directions at 4.30 pm on 4 November 2005. At that directions hearing, the respondent advised of receipt that day of, first, Mr Pandevski's statement, then the applicants' statement at 2.30 pm and then the applicants' Statement of Issues, Facts and Contentions just prior to the directions hearing.

16 The respondent said at the hearing that it considered the failure to provide the documents as ordered to be unfair. While it would not be impossible to prepare for a hearing between Friday afternoon and the following Tuesday, the preparation would be less than desired because of limited opportunity for considering the applicants' contentions, briefing the planning witness and preparing for cross­examination. The applicants had all the respondent's documents by 17 October 2005. The solicitors for the respondent also applied for the respondent's costs of the direction hearing to be awarded against the applicants.

17 The solicitors for the applicants said the preparation for the hearing should not be complicated because the issues were essentially the same as considered previously in the earlier application for review (Aydogan & Ors v Town of Cambridge [2004] WATPAT 110). A short delay in the hearing would be sufficient if there were to be a delay. The solicitors explained that the applicants had been in Malaysia until recently and this had caused the delay in finalising the witness statements.

18 The parties then made submissions on the issue raised by the applicants, that is, what information the respondent should be required to provide the applicants from the Council meeting of 23 August 2005.

19 The orders issued by the Tribunal following the directions hearing of 4 November 2005 were:

"1. The hearing of 8 November 2005 is vacated and the matter is adjourned to a hearing at 10.00 am Thursday 24 November 2005.

2. By Monday 7 November 2005, the applicant [sic] is to complete the filing and serving of the statements of the witnesses on which it is to rely and to file and serve the documents it is required to file under s 24 State Administrative Tribunal Act 2004.

3. By Friday 11 November 2005 the respondent is to file and serve:

(i) A copy of the officer's recommendation on this matter made to Council at the Council meeting of 23 August 2005.

(ii) Any submissions in reply to the applicants' witness statements and contentions.

4. As to the applicants' [sic] application for costs for this directions hearing, the parties are to file and serve written submissions by Friday 11 November 2005."

"(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 decision­maker to make a decision on its merits;

(b) whether the party (being the decision­maker) genuinely attempted to make a decision on its merits.

21 The applicants, in their submission on the costs application, restated from s 87(1) that each party bears its own costs in a proceeding before the Tribunal unless specified in the SAT Act or ordered otherwise by the Tribunal. The applicants said that for costs to be awarded, there must first be a determination by the Tribunal to strike out a proceeding under s 48(1)(a) of the SAT Act, that is, for "failing to comply with an order or direction of the Tribunal without reasonable excuse". This, it said, would then activate the exceptions to parties bearing their own costs provided for in s 88(3) enabling the Tribunal to make a costs order. The applicants also argued that the SAT Act does not make provision for the Tribunal to make interim costs orders where it is exercising its review jurisdiction, as the power of the Tribunal to order costs is ancillary to the Tribunal's final decision and determination of the matter. No authorities were provided to support the submission.

22 As pointed out by the respondent, this was an application for payment of the costs of a party to the proceedings, in this case the respondent, as provided for in s 87(2). The application for costs was not made for costs of a proceeding under s 88. Section 88(1) of the SAT Act states:

'Costs of proceedings' means costs of, or incidental to, a proceeding of the Tribunal, other than costs of a party."

23 In short, the application by the respondent in this instance was not one to have the matter struck out under s 48, was not one for the cost of proceedings other than costs of a party under s 88, but is an application for costs of a party under s 87. The Tribunal has treated the application accordingly.

24 The Tribunal has recognised that, from the terms of s 87(1) of the SAT Act, the starting proposition is that parties bear their own costs in a proceeding: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 at [28]. Section 87(2), however, clearly confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party, unless otherwise specified in an enabling Act. As to the extent of matters that can be considered under s 87(2), the Tribunal stated in Lakes Action Group Association (Inc) v Shire of Northam [2005] WASAT 185(S):

"22. ... from 1 January 2005, the question of costs of parties to proceedings ... became governed by s 87 of the SAT Act.

23. ... Section 87(4) identifies certain matters to which the Tribunal is to have regard in exercising its discretion to award costs in the Tribunal's review jurisdiction. That subsection does not limit the matters which might be considered under s 87(2): Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246 at 253."

25 The Tribunal is also able to exercise the discretion available in respect of an application for costs on an interim matter such as a directions hearing: Randall and Town of Vincent [2005] WASAT 147 at [33].

26 The respondent's submission on its application for costs can be summarised as:

1. witness statements were to be provided by 7 October 2005 but were not provided by the applicants until 4 November 2005;

2. the applicants were to provide their Statement of Issues, Facts and Contentions by 23 September 2005 but this was not provided until just before the directions hearing of 4 November 2005;

3. no reasonable excuse has been provided for the applicants failing to comply with the directions of the Tribunal;

4. the extent of the delay in filing and providing the various documents was excessive and unreasonable;

5. the need to apply for the directions hearing of 4 November 2005 arose solely as a result of the non­compliance by the applicants with the Tribunal's orders; and

6. the respondent incurred costs associated with the directions hearing that would not have been incurred, but for the unreasonable conduct of the applicants.

27 The respondent requested the applicants be ordered to pay the respondent's costs of its solicitors attending the directions hearing and that the Tribunal fix the costs to be paid at $300.

28 The submission of the solicitors for the applicants states that the delay in filing the applicants' statement was contributed to by the applicants working in Malaysia and only recently returning to Perth for the hearing. This, it was said, is a reasonable excuse for the delay.

29 In its email to the respondent of 2 November 2005, the solicitors for the applicants said the planning witness, Steve Pandevski, had prepared a statement but that it was to be updated to accommodate the changes to the height rules. The solicitors for the applicants also reminded the Tribunal that the respondent had said at the directions hearing that it would have been prepared to deal with the matter on the hearing day if required.

30 It was common ground between the parties that two­thirds of the directions hearing was concerned with the applicants' non­compliance with the orders of the Tribunal. The other third was concerned with the applicants' application for disclosure of an internal report that was presented to the respondent at its meeting of 23 August 2005.

31 The Tribunal agrees with the further submission of the respondent that the application for disclosure of the August 2005 report is not relevant to compliance with the orders of the Tribunal. It is not known what information the respondent had before it, but the respondent made a resolution and then instructed its witnesses to produce witness statements which were provided to the applicants. It will be the evidence of these witnesses upon which the respondent will be relying. The applicants had engaged their own expertise to support their case and the required witness statements could have been prepared.

32 The question for the Tribunal is whether the applicants had reasonable excuse for their failure to comply with the 30 August orders and whether this has caused the respondent to apply for and attend the directions hearing of 4 November 2005. The Tribunal is of the view that the explanation provided by the applicants is not sufficient to explain the delay in the filing and providing to the respondent of the documents until, effectively, a weekend and one working day before the hearing. This is because:

1. The applicants were said to be working in Malaysia. It is not clear if this was for all of the weeks following the 30 August 2005 directions hearing, and why this prevented communication to finalise witness statements, particularly in the knowledge that the Tribunal had issued particular orders.

2. The changes to the "height rules" that Mr Pandevski had to address had occurred in about June 2005 and were mentioned at the directions hearing of 5 August 2005. These could have been addressed prior to November 2005.

3. Nothing has been provided to explain why the applicants' statement of issues, facts and contentions was not provided by 23 September 2005, and was only supplied at the door of the directions hearing of 4 November 2005.

4. No application was made by the applicants to bring the matter back before the Tribunal to vary the 30 August 2005 orders in the light of any difficulties being experienced in providing the ordered documents within a reasonable time before the listed final hearing.

33 The respondent did write to the applicants on 1 November 2005 reminding them that the documents were ordered to be provided. The documents did not arrive at the times indicated in the applicants' reply. The application for the directions hearing was then made and the Tribunal decided that it was appropriate to have the directions hearing at such short notice and have the parties appear because of the applicants' failure to comply with the orders of the Tribunal. The witness statements of the applicants were provided to the respondent a few hours before the time for the directions hearing and the statement of issues, facts and contentions was provided at the door. The late provision of the documents was not considered by the Tribunal to negate the need to proceed with the directions hearing and to address the position in which the respondent found itself relative to the hearing listed for the following Tuesday.

34 On the submissions made, the Tribunal has determined that it is appropriate to exercise its discretion in relation to costs under s 87(2) of the SAT Act so as to compensate the respondent for the professional costs of having had his solicitors attend the directions hearing of 4 November 2005.

35 In accordance with s 87(2) of the State Administrative Tribunal Act 2004 (WA), the applicants shall pay the respondent's costs of the directions hearing on 4 November 2005 in the amount of $300.

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR J JORDAN, MEMBER