CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96

CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96 - ACTSC 2013 case summary — Zoe

[61]

Whether in circumstances where an applicant has not withdrawn its application for review, or discontinued the proceeding, but the subject matter of the review has ceased to exist, the proper exercise of the power to dispose of the proceedings is an order made pursuant to s 32(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) ("ACAT Act") and not an order pursuant to s 56(d) of the ACAT Act (Tribunal's Decision at [20], [21]);
Whether it is relevant to the exercise of the discretion to award costs under s 48(1) of the ACAT Act to consider whether:
1. it is open to the Tribunal to make an order for costs under s 48(2) or s 49 of the ACAT Act (Tribunal's Decision at [34] - [37]);
2. the circumstances described in a precondition to any one of the paragraphs of s 48(2) exist, as a matter of form or substance, and the Tribunal is not in those circumstances empowered to award costs to the party seeking costs (Tribunal's Decision at [36] - [37]);
Whether it is irrelevant to the exercise of the discretion to award costs under s 48(1) in a merits review proceeding that the proceeding resembles a conventional commercial adversarial dispute (Tribunal's Decision at [11], [12], [49]); and
1. if that consideration is not irrelevant, whether the conclusion that the proceeding resembles a conventional commercial adversarial dispute is infected by legal error.
Whether it is irrelevant to the exercise of the discretion under s 48(1) to consider whether the applicant has incurred expense and the quantum of its costs (Tribunal's Decision at [27], [28]);
Whether it is relevant to the exercise of the discretion under s 48(1) to consider whether making costs orders in matters that are resolved or become futile shortly before, or upon, or during the hearing, may operate as a disincentive to parties' resolving matters at any time subsequent to the early stages of the proceeding (Tribunal's Decision at [65]);
Whether the surrender of a development approval pursuant to s 184(2)(d) of the Planning and Development Act 2007 (ACT) ("PD Act") is properly categorised as a "supervening event" and not as a "surrender", in the sense in which those terms are used by Burchett J in One.Tel Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 at [6] (Tribunal's Decision at [76]);
Whether the surrender of a development approval pursuant to s 184(2)(d) of the PD Act by a party to pending proceedings for review in the Tribunal is effectively discontinuance of the proceedings by that party without consent (Tribunal's Decision at [77]);
Whether for the purposes of the exercise of the discretion under s 48(1) of the ACAT Act to award costs, a party engages in unreasonable or disentitling conduct by:
1. not having offered an explanation as to why it did not surrender its development approval under s 184(2)(d) of the PD Act earlier (Tribunal's Decision at [26], [29], [79]); or
2. having surrendered the development approval at a time assessed by the Tribunal to have been unreasonable (Tribunal's Decision at [81]);
Whether, for the purposes of the exercise of the discretion to award costs, a party engages in unreasonable or disentitling conduct by not having provided evidence, or taken other steps to advise the Tribunal, that any subsequent development application will address any or all of the matters alleged by another party in the proceedings to have been deficiencies in the surrendered development approval (Tribunal's Decision at [80]);
Whether in relation to the removal of the subject matter of a proceeding the motives of a party to the proceeding are relevant to the exercise of the discretion under s 48(1) (Tribunal's Decision at [79]);
Whether there was no evidence for the Tribunal's findings that:

[73]

Section 148 confers "judicial power to examine for legal error what has been done in an administrative tribunal". Despite the description of proceedings under the section as an "appeal", it confers original not appellate jurisdiction; the proceedings are "in the nature of judicial review".
The jurisdiction conferred by s 148(1) is confined to appeals on questions of law. Section 148(7) does not enlarge that jurisdiction. It confers powers on the court in aid of its exercise. That feature of s 148 resembles s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Commonwealth AAT Act), which defines the analogous jurisdiction of the Federal Court to hear appeals on questions of law against decisions of the Administrative Appeals Tribunal (AAT). Under s 44(4) of the Commonwealth AAT Act, the Federal Court, in determining an appeal, may "make such order as it thinks appropriate by reason of its decision". But wide as that power may be, the Court "should not usurp the fact-finding function of the AAT". Those observations turn upon the text of s 44. They do not depend upon the separation of judicial and executive powers, which limits the functions that can be conferred upon federal courts. They have application to the jurisdiction conferred upon the Court of Appeal by s 148 of the VCAT Act, which is, in concept and in terms, modelled on, although not identical to, s 44.
The Court of Appeal, in the exercise of its jurisdiction under s 148 of the VCAT Act, may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. In that event, the Court can make the order that the Tribunal should have made. The language of s 148(7) is also wide enough to allow the Court of Appeal to make substitutive orders in other circumstances. But its powers must, as with the equivalent powers of the Federal Court in relation to the AAT, be exercised having regard to the limited nature of the appeal. Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment.

[261]

Against this background, judicial descriptions of a statutory discretion to award costs as "absolute and unfettered", "unqualified", "uncontrolled" or "unconfined" cannot be taken at face value. Because the discretion is typically conferred upon a court or tribunal obliged to act judicially, fetters, confinement and controls of a sort are provided by the law. Although appellate courts should avoid the imposition of rigid requirements which would gloss the statute and narrow the discretion afforded to the donees of the statutory power, they retain a function to guide those who are obliged to exercise cost discretions. Such guidance may be afforded by referring in general terms to the considerations which the decision-maker can take into account. Such considerations may be listed for the avoidance of arbitrariness and inconsistency in such decisions. They are not intended to confine the decision-maker to a rigidly mechanical approach. Arbitrariness and inconsistency would be potentially unjust and therefore undesirable. Mechanical rigidity would amount to an abdication of the discretion afforded to the decision-maker in large terms.
It is because the general purpose of an order for costs in favour of a successful party is to provide compensation in the form of a partial indemnity for the costs incurred that the ordinary principle observed in civil litigation under the "English rule" (as contrasted to the "American rule") is that legal costs will usually be ordered in favour of the successful party. Absent special statutory provisions, Australian law has followed this English rule. But the compensatory principle cannot be treated as an absolute rule. Otherwise, the discretion conferred in unqualified terms would indeed be shackled and confined. To permit this would be incompatible with statutory language expressed in such terms. Therefore, although there are "rules" or ordinary principles which will guide the donee of power in the exercise of the discretion, they cannot extinguish the element of discretion. They must not be allowed to harden into rigid or inflexible requirements. (citations omitted)

[273]

77. However, in Eastman v CSH, the Court of Appeal had indicated agreement with the views of Lander J in the decision under appeal, David Harold Eastman v Commissioner For Social Housing [2010] ACTSC 71 that different criteria are applicable where leave is required not for an appeal from an interlocutory decision but as a pre-requisite to the exercise of a statutorily-limited appeal right, saying:

57. Here, taking up the Master's inaccurate paraphrase of the principles in Niemann, [Lander J] said that whether a decision of the tribunal were attended by doubt or the applicant would suffer an injustice if the decision were allowed to stand were not relevant considerations on an application for leave to appeal under s 125 of the Residential Tenancies Act. His Honour stated (at [67]):

The statutory criterion for an application under s 125 which must be made out is whether the applicant can identify a question of law. To obtain leave the applicant also needs to show at least an arguable case that the Tribunal erred in its consideration of that question of law. Finally, an applicant needs to show that if the question of law were determined in the manner contended for by the applicant the decision of the Tribunal might have been different in the sense that it might have been more favourable to the applicant: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Mason CJ at 353 and Toohey and Gaudron JJ at 384 in dealing with an "error of law".

58. The plain intention of the legislature is to provide a filter for appeals from the tribunal. What is tolerably clear from the plain words of the section is that it is insufficient to point to a question of law. Something more is required. We agree with the primary judge that it is necessary for an applicant to demonstrate that he or she has at least an arguable case, that the tribunal has erred in its resolution of a question of law and that the result of the error [sic] would have been more favourable to him or her. Otherwise, it would be futile to grant leave. We are not convinced that whether the applicant would suffer a substantial injustice if the decision were allowed to stand is irrelevant but, absent an arguable case, it will certainly not justify a grant of leave. Nothing in Niemann suggests otherwise. We did not, however, hear full argument on this question and it is unnecessary to resolve it in this case. On either approach, for the reasons which follow, Mr Eastman must fail.

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Judgment (327 paragraphs)

CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96 (31 May 2013)

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Legislation Cited (48)

Cases Cited (8)