Planning and environment - Civil enforcement proceedings - Courts and tribunals with environment jurisdiction - Tasmania - Tasmanian Civil and Administrative Tribunal - Costs - No departure from the general rule

Procedure - Civil proceedings in tribunals - Tasmanian Civil and Administrative Tribunal - Costs - Witness expenses

Land Use Planning and Approvals Act 1993;

Supreme Court Civil Procedure Act 1932;

Tasmanian Civil and Administrative Tribunal Act 2020; Tasmanian Civil and Administrative Tribunal Rules 2021

Bonney v Nietta Hydro Pty Ltd [2024] TASCAT 132; Hardman v Ward (2004) 13 Tas R 134; [2004] TASSC 74;

Carnevale v Baker (1996) 90 LGERA 172;

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

1. The applicant brought civil enforcement proceedings against the respondent pursuant to the Land Use Planning and Approvals Act 1993 (LUPAA), s 64. After a contested hearing in which the applicant, the respondent, and the planning authority took part, we dismissed the application: Bonney v Nietta Hydro Pty Ltd [2024] TASCAT 132 (Primary Reasons).
2. The respondent and the planning authority have each applied for the applicant to pay their costs. The applicant opposes the applications.

1. The respondent seeks its costs. Its written application sought costs in respect of specific items, such as solicitors' fees, travel expenses, an independent contractor's time, and a consultant's time.
2. Mr Miles Snr represented the respondent at the hearing, albeit not as a legal practitioner.
3. The applicant summonsed Mr Miles Jnr to produce documents and to give evidence, which he did via video-link, at the hearing. The respondent seeks Mr Miles Jnr's expenses.

1. The planning authority seeks an order that the applicant pay its costs in accordance with 95% of the scale applicable under the Supreme Court Rules 2000. It contends that:
   • the application was wholly unsuccessful for reasons made clear to the applicant before the proceedings were commenced;
   • most of the applicant's materials and submission were frivolous or of no assistance; and
   • the proceedings were unnecessarily prolonged, and costs increased, by the applicant's misconceived interlocutory applications and failed opposition to the planning authority's application for a witness to give evidence by video-link.

1. The applicant opposes the applications for costs. He contends that each party should bear their own costs because:
   • the planning authority engaged in disentitling conduct in that it failed to comply with the Tribunal's directions, was vexatious in dealing with an earlier application under the Right to Information Act 2009, and was "inviting litigation" while the applicant "was trying to avoid legal proceedings";
   • Mr Miles Jnr's conduct in responding to the notice to produce issued at the applicant's request was vexatious;
   • the majority of the respondent's claim for costs is based on Mr Miles Snr's time, which is not recoverable consistent with Cachia v Hanes (1994) 179 CLR 403; and
   • although the respondent succeeded, its evidence and submissions related to an issue (its entitlement to transfer water under the Water Management Act 1999) which had no bearing on the outcome.
2. The applicant also makes submissions about individual items claimed by the respondent, such as lost income and flights.

1. As we noted in our Primary Reasons, s 64(12) of LUPAA requires us to make an order in relation to the costs of the proceedings. The provision reads as follows:

(12) The Appeal Tribunal must make such orders in relation to the costs of proceedings under this section as it thinks fit and in making such orders must take into account - > > (a) the result of the proceedings; and > > (b) whether a party has raised frivolous or vexatious issues at the hearing; and > > (c) whether any party has unnecessarily or unreasonably prolonged the hearing or increased the costs of it; and > > (d) the capacity of the parties to meet an order for costs.

2. This displaces the general costs provisions applicable to Resource and Planning Stream matters: Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act), Pt 8, cl 12(1).
3. The following principles are relevant:
   • section 64(12) of LUPAA amounts to a proposition that costs typically follow the event: Hardman v Ward (2004) 13 Tas R 134; [2004] TASSC 74;
   • an order for costs is designed to compensate a successful party, not punish an unsuccessful party;
   • the factors in s 64(12) are not jurisdictional criteria; they are matters to be considered. The weight given to each of those matters, as well as to other matters, will depend on the circumstances: Carnevale v Baker (1996) 90 LGERA 172; and
   • conduct occurring prior to the commencement of litigation may be relevant: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.

1. We have carefully considered the parties' submissions. It is unnecessary to separately address every complaint that one party makes about another's conduct. Rather, our obligation is to make such orders for costs as we think fit having regard to relevant matters. In doing so, we look at the litigation as a whole.
2. We find that:
   • The respondent and planning authority were wholly successful.
   • Neither the respondent nor the planning authority raised frivolous or vexatious issues.
   • Although much of the applicant's evidence was not admitted and several interlocutory applications were determined against him, the proceeding itself was neither frivolous nor vexatious, although it was misconceived.
   • While some applications made by the applicant, and his opposition to the planning authority's application for its witness to give evidence via video-link, were misconceived, they were not frivolous or vexatious. In the latter instance, although the opposition was misconceived given the limited cross-examination and therefore limited prejudice caused by the video-link, the planning authority's application was made shortly before the hearing.
   • Neither the respondent nor the planning authority unnecessarily or unreasonably prolonged the hearing or increased the costs of it.
   • There is no evidence addressing the parties' respective capacities to meet an order for costs, making this a neutral factor.
   • While the respondent's submissions were not particularly helpful, being based on the Water Management Act, they were short and confined. That our Principal Reasons drew more heavily on the planning authority's submissions does not disentitle the respondent to its costs.
3. Some of the applicant's submissions allege a lack of good faith by the planning authority. We need not consider those in any detail. We are far from satisfied that there is a proper factual basis for such submissions. In any event, such allegations do not inform the question of costs when weighed against the balance of our findings. Similarly, the applicant's complaint about the planning authority's response to an application under the Right to Information Act 2009 is irrelevant to the question of costs.
4. It is unnecessary to determine whether, and to what extent, the planning authority owes model litigant obligations. It is also unnecessary for us to determine the cost consequences of any breach. We are not satisfied that the applicant breached any model litigant obligations. Nor are we satisfied that the planning authority engaged in disentitling conduct. This litigation involved many pieces of correspondence between the parties and several interlocutory applications. To the extent that a party may have failed to comply with a practice direction or may have been slow in taking a particular action, none (whether individually or in combination) constitutes disentitling conduct.
5. Similarly, the planning authority was under no obligation to disclose its submissions or the substance of them prior to the filing of submissions. The letter from the planning authority's solicitors to the applicant explaining why it would not bring a proceeding against the respondent, although not coextensive with the submissions, was sufficient to indicate the planning authority's position: that the respondent was not using the applicant's land.
6. As we noted in our Primary Reasons, the applicant bore the onus of proof. The planning authority did not elect to join the proceeding; it was automatically joined by LUPAA, s 64(2A)(b)(i). We reject the applicant's contention that the planning authority was "inviting litigation" while the applicant "was trying to avoid legal proceedings".
7. At risk of oversimplification, the applicant voluntarily commenced the proceeding. He bore the onus of proving his case. The respondent and planning authority were not obliged to give or adduce evidence. Nor were they obliged to disclose their respective cases earlier than they did. The applicant was aware of the potential consequences in terms of costs.
8. Putting to one side the complaints about the applicant's conduct of the proceedings, the outcome of the proceedings and the (good) conduct of the respondent and the party joined are sufficient to justify their respective entitlement to costs. While there is some merit in the planning authority's complaints about the applicant's conduct of the proceedings, these are not dispositive of the application.
9. We are satisfied that the applicant should pay the costs of the respondent and the planning authority.

1. No party expressly seeks solicitor/client costs, nor has a party expressly sought a lump-sum costs order (although the respondent provided a list of items). In the circumstances of this proceeding, there is no justification for any punitive or exemplary costs order. We are satisfied that the appropriate outcome is for the unsuccessful party to pay the successful parties' costs.
2. While, having regard to the confined subject matter, this may have been an appropriate case to make a lump sum costs order, there is insufficient material upon which to do so. Accordingly, an order for party/party costs is appropriate. It will be a matter for the parties to agree, or a registrar to assess, the quantum of costs. This will include consideration of issues relating to each item, such as whether a non-lawyer may claim costs for their time and whether a particular cost or expense was reasonably incurred.
3. We need to determine the applicable scale of costs. This is addressed in the Tasmanian Civil and Administrative Tribunal Rules 2021 (TASCAT Rules). Rule 18 reads:

(1) Subject to an order of the Tribunal and the provisions of a relevant Act, if the Tribunal has not ordered the payment, in relation to proceedings, of a lump sum in costs -

(a) costs, in relation to the proceedings, awarded by the Tribunal are to be assessed -

(i) at the percentage, determined by the Tribunal, of the scale of costs applicable from time to time for the purposes of the Supreme Court Civil Procedure Act 1932; or

(ii) if no other percentage is determined by the Tribunal - at 75% of the scale of costs applicable from time to time for the purposes of the Supreme Court Civil Procedure Act 1932; and

(b) if costs are not agreed by the parties, the Tribunal may, on the application of a party, determine the amount of costs payable.

(2) In determining the costs to be awarded to a party to proceedings, the Tribunal may take into account that the party did not accept an offer as favourable as, or more favourable than, the Tribunal's order or decision in the proceedings.

(3) A registrar may, at the direction of the President, constitute the Tribunal for the purposes of this rule.

1. The planning authority seeks 95% of the scale under the Supreme Court Civil Procedure Act 1932. The respondent's submissions are silent on the issue. We consider 95% to be too high having regard to the nature of the issue in dispute and the scale and complexity of the proceedings. Although recent decisions in the Tribunal's General Division vary, several have adopted 80%, notwithstanding the default position of 75% in r 18(a)(ii) (which we consider to be too low in the circumstances of this case given the relative complexity and issues arising in the course of the proceedings). We will do the same.
2. There is no compelling reason to adopt a different proportion in respect of the respondent's costs application, although we repeat our observation that several of the respondent's expenses may not be claimable.

Witness expenses - the summons directed to Mr Miles Jnr

1. We turn to the discrete issue of witness expenses. At the hearing of the applicant's applications for witness summonses, Member Thompson noted that the applicant may need to pay a summonsed party's costs, as reflected in the TASCAT Act, s 104(6) and the TASCAT Rules, r 20A.
2. The respondent seeks the expenses incurred by Mr Miles Jnr. As we noted above, Mr Miles Jnr appeared not as the respondent's representative or witness, but in obedience to a summons issued at the applicant's request. The applicant called him as a witness. Accordingly, his costs are to be determined under the TASCAT Rules, r 20A, rather than as the costs of a party under the TASCAT Act, s 120.
3. For the purposes of determining Mr Miles Jnr's costs, we interpret the respondent's submissions as being his submissions. Mr Miles Jnr seeks various expenses, including flights to and from the hearing and loss of income.
4. The starting point is that the applicant is liable to pay to Mr Miles Jnr the 'costs amount' in relation to the summons as well as the 'loss and expenses amount' in relation to the summons: r 20A(2). These terms are defined in r 20A(1) as:

costs amount, in relation to a person to whom a summons is issued by the Tribunal, means -

(a) for each day on which the person is required to attend before the Tribunal in accordance with the summons - the witness allowance, in relation to the summons, specified in subrule (6); and

(b) the amount, of the reasonable costs of complying with the summons, that is greater than the witness allowance in relation to the summons and that -

(i) is agreed between the person and the party who applied for the summons to be issued; or

(ii) if the person and the party do not agree as to the amount of those costs - is determined by the Tribunal under subrule (5);

loss and expenses amount, in relation to a person to whom a summons is issued by the Tribunal, means a reasonable amount, for any loss or expense incurred by the person in complying with the summons (being an amount that is not included in the costs amount, in relation to the summons, whether or not the party is liable under subrule (2) to pay the costs amount to the person), that -

(a) is agreed between the person and the party who applied for the summons to be issued; or

(b) if the person and the party do not agree as to the amount - is determined by the Tribunal under subrule (5).

1. The 'witness allowance' is $100 for each day. As the hearing took part of a single day, Mr Miles Jnr is prima facie entitled to $100. In addition, he is entitled to a greater amount of reasonable costs as agreed by the parties or determined by the Tribunal. Mr Miles Jnr's conduct in responding to the summons cannot be criticised.
2. Rule 20A(5) allows the Tribunal to determine Mr Miles Jnr's costs of complying with the summons. Pursuant to r 22, a registrar may constitute the Tribunal for the purpose of making a determination under r 20A. Given the overlap between the respondent's costs and Mr Miles Jnr's witness expenses, both costs questions should be determined by a registrar at the same time unless they are otherwise agreed.

1. We make the following orders:
   1. The applicant pay the respondent's party/party costs of and incidental to the proceeding in accordance with 80% of the scale of costs applicable from time to time for the purposes of the Supreme Court Civil Procedure Act 1932, to be taxed by a registrar in default of agreement.
   2. The applicant pay Mr Casey Miles' costs of responding to the summons issued to him, such costs to be assessed by a registrar in default of agreement.
   3. The applicant pay the planning authority's party/party costs of and incidental to the proceeding in accordance with 80% of the scale of costs applicable from time to time for the purposes of the Supreme Court Civil Procedure Act 1932, to be taxed by a registrar in default of agreement.