CITATION : CITYGATE PROPERTIES PTY LTD and CITY OF BUNBURY [2005] WASAT 53

HEARD : 11 MARCH 2005 (WRITTEN SUBMISSIONS RECEIVED 15 MARCH 2005, 16 MARCH 2005 AND 24 MARCH 2005)

Jurisdiction - Practice and procedure - Strike out application - Unjustified proceedings - Proceedings misconceived - Lack of statutory basis - Costs

Local Government Act 1995 (WA) s 3.25, s 9.1, s 9.2, s 9.7, s 9.8

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act (WA) 2004 Div 76

State Administrative Tribunal Act 2004 (WA) s 7, s 47, s 87, s 167

State Administrative Tribunal Regulations 2004 (WA) reg 28(2)(a)

State Administrative Tribunal Rules 2004 r 43

1. In accordance with s 47(2) of the State Administrative Tribunal Act 2004, these proceedings are struck out

2. In accordance with s 87(2) of the State Administrative Tribunal Act 2004, the respondent pay the costs of the applicant in commencing and prosecuting the appeal before the Minister for Local Government and Regional Development and the application for review, including the costs of the respondent's application to strike out the proceedings and the issue of costs, as agreed, or on application by either party, as as assessed by a member of the Tribunal nominated by the President in accordance with r 43 of the State Administrative Tribunal Rules 2004

Applicant : Mr A Prentice (submissions by Mr E Abdo)

Gee v Port Stephens Council [2003] NSWLEC 260; (2003) 131 LGERA 325

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; 96 LGERA 173

1 This is an application by the City of Bunbury ("the respondent") to strike out proceedings which purport to be an application for review of "a decision and direction of the [respondent] to remove [a] hoarding and signage thereon" at Lot 71 Bunning Boulevard, Bunbury ("the site"). Although the respondent's submissions do not identify the statutory basis for the application, it appears that it is made under s 47 of the State Administrative Tribunal Act 2004 (WA) ("the Tribunal Act").

2 Section 47(2) of the Tribunal Act provides that, where the section applies, the Tribunal may order that the proceedings be dismissed or struck out and make any appropriate orders. Section 47(1) provides that the section applies if the Tribunal believes that a proceeding is, among other circumstances, "misconceived or lacking in substance" (par (a)). Section 47(3) provides that the Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member. Section 47(4) provides that the Tribunal may act under subsection (2) on the application of a party or on its own initiative.

3 The respondent filed and served submissions in support of its application on the day prior to a directions hearing in this matter before me. As the applicant was represented at the directions hearing by a city agent, and had not had sufficient time to consider and respond to the application, I made directions that it file and provide to the respondent submissions in reply, the respondent reply to the applicant's submissions, and the issue be determined entirely on the documents.

4 The applicant's submissions stated that, having had the opportunity to consider the respondent's submissions and all other matters, it "agree[d] to a dismissal of the appeal on the basis that the City of Bunbury pay [its] costs". The respondent filed and provided submissions in which it opposed an order for costs. The applicant then filed and provided submissions in reply in relation to the question of costs. These submissions reiterated that the applicant sought an order for costs, and made an alternative application that each party bear its own costs of the proceedings.

5 On 26 October 2004, Mr Gary Fitzgerald, Manager Development Services of the respondent, responded to a letter from the applicant's solicitors dated 27 September 2004 in relation to alleged "unlawful third party signage" at the site. In the letter, Mr Fitzgerald stated as follows:

"With the intent of conveying to you, a clear and transparent explanation of the compliance issue at hand, I would like to briefly cover the history of how this issue has come to our attention, and furthermore, what needs to be done to rectify the situation."

6 Mr Fitzgerald then recounted in detail the history of the respondent's regulation of advertising signage within the local government area from 1964 to date. The letter concluded as follows:

"Although the Bunning Boulevard signage was previously authorised, it has been changed from that which was initially authorised and therefore under the current and previous Local Law for Advertising Devices, an application was required to be submitted in order to approve this sign as it reads today ie Eaton Fair.

As this signage is unlicenced and is not likely to be approved, as it is Third Party Advertising, the City is now requesting both signs be removed within fourteen (14) days of receiving this notice. Please be advised that failure to act on this notice is an offence under the Local Government Act 1995.

Should you be aggrieved by this decision, you may lodge an objection or utilise your right of appeal, pursuant to the Provisions of the Local Government Act 1995. An objection should be lodged with Council within twenty-eight (28) days of this advice and can be lodged only if an appeal against the decision has not been made. An appeal against this decision should be lodged within forty-two (42) days after receiving written confirmation of this decision. The appeal is to be dealt with by a Local Court or the Minister for Local Government, as the appellant elects in the appeal.

A copy of an appeal is to be provided to the City of Bunbury as soon as practicable after the appeal is lodged. The prescribed objection form and appeal form have both been enclosed along with copies of the Local Law and Policy as requested.

If you have any further queries regarding this matter, please contact Warren Beaman on (08) 97 222 737." (Emphasis added.)

7 On 6 December 2004, the applicant's solicitors purported to appeal to the Minister for Local Government ("the Minister") against the "decision and direction" of the respondent pursuant to s 9.7 of the Local Government Act 1995 (WA) ("the LG Act"). The appeal documents included a detailed statement of the applicant's grounds of appeal. In essence, the applicant argued that the hoarding in question was installed with approval and the current signage was painted well before the commencement of the current policy in relation to advertising and that, by virtue of various provisions of the current policy, the hoarding and signage were lawful.

8 On 15 December 2004, Mr Lou Naumovski, Senior Advisory Officer to the Minister, wrote to the Chief Executive Officer of the respondent in relation to the appeal. The letter states, in part, as follows:

"Having examined the documentation submitted by Edwin Abdo & Associates, the Department considers that there is no appeal right.

For instance, an appeal right could not arise from the service of a notice under section 3.25 of the Act, as Schedule 3.1 does not provide for the service of a notice to remove unlawful signage.

Secondly, there is nothing to indicate that an application has been made for the signage, in its present form, and refused by the City or that the City has revoked a previous approval for the signage, in its present form.

I would appreciate your consideration of my comments and advice as to whether you still consider that there is an appeal right under the Local Government Act 1995, in this instance."

9 On 22 December 2004, Mr Fitzgerald responded on behalf of the respondent to Mr Naumovski's letter. Mr Fitzgerald did not accept the Department's view that there was no appeal right in the present case. Indeed, he considered that relevant appeal rights arose under three different legislative provisions. First, he contended that, as the respondent had granted an approval to erect the hoarding and sign in 1985, "the City feels that it has 'granted a person an authorisation' " within the meaning of s 9.1(1)(a) of the LG Act. Second, he considered that "the City cancelled that authorisation" within the meaning of s 9.1(1)(b) of the LG Act, and that the applicant was an "affected person" within the meaning of s 9.2 of that Act. Third, Mr Fitzgerald identified cl 5.6 of the City of Bunbury Local Law Relating To Advertising Devices which stated that the appeal procedures provided for in Pt 9 Div 1 of the LG Act applied where provision was made for the issue or cancellation of any authorisation under that Local Law. Mr Fitzgerald stated as follows:

"The City therefore feels that it had the right to request the appellant to remove the sign and the hoarding as the licence has expired (a condition of the original licence), the appellant had an appeal right under section 5.6 of the City of Bunbury Local Law relating to Advertising Devices and that the City had a duty to make the appellant aware of this right."

10 The Tribunal Act commenced on 1 January 2005 and, by s 7, established the State Administrative Tribunal. On that day, Div 76 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) ("the Jurisdiction Act") also commenced and amended various provisions of the LG Act such that appeals against decisions of local government which were previously within the jurisdiction of the Local Court or the Minister, were thereafter, as applications for review, within the jurisdiction of this Tribunal.

11 On 28 January 2005, in accordance with the transitional provisions set out in s 167(1), s 167(4)(c), and s 167(5) of the Tribunal Act, the Minister transferred this matter to the Tribunal.

12 In accordance with reg 28(2)(a) of the State Administrative Tribunal Regulations 2004 (WA), as this matter was transferred to the Tribunal under s 167 of the Tribunal Act, "the matter is to be taken to have been commenced in the Tribunal".

13 Section 9.7, which forms part of Div 1 of Pt 9 of the LG Act, confers a right on an "affected person" to make application for review of a "decision" to this Tribunal. Prior to 1 January 2005, the section conferred a right of appeal on an "affected person" against a "decision". At the time that the appeal in this matter was commenced, s 9.8 provided relevantly that, with certain exceptions, appeals were to be dealt with by the Minister.

14 Section 9.2 of the LG Act defines the term "decision" for the purposes of the relevant provisions as "a decision or notice that, in accordance with section 9.1, causes [Pt 9 Div 1] to apply". The term "affected person" is defined in relation to a decision to which Pt 9 Div 1 applies as a person referred to in s 9.1.

15 Section 9.1 of the LG Act provides as follows:

(1) [Part 9 Division 1] applies when a local government makes a decision under this Act as to whether it will -

(a) grant a person an authorisation under Part 3 or under any local law or regulation that is to operate as if it were a local law; or

(b) renew, vary, or cancel an authorisation that a person has under any of those provisions.

(2) [Part 9 Division 1] also applies whenever a local government gives a person a notice under section 3.25, and for the purposes of this Division, the giving of a notice under that section is to be regarded as the making of a decision.

(3) [Part 9 Division 1] also applies whenever a local law, or regulation that is to operate as if it were a local law, states that a decision under it is one to which this Division applies and that a person specified in it is an affected person for the purposes of this Division."

16 Section 3.25(1) of the LG Act authorises a local government to give a person who is the owner or, in certain cases, the occupier of land, a notice in writing relating to the land requiring the person to do anything specified in that notice that is prescribed in Sch 3.1 Div 1. Section 3.25(6) provides that a person who fails to comply with a notice under subsection (1) commits an offence.

17 Notwithstanding its statements in its letters to the applicant's solicitors dated 26 October 2004 and to the Minister's Senior Advisory Officer dated 22 December 2004, the respondent now submits that "none of the criteria necessary to found a valid appeal under Part 9 Division 1 of the Local Government Act 1995 (WA) applies in this case." It submits that it has not made a decision within the meaning of s 9.1(1) of the LG Act to either grant the applicant an authorisation under Pt 3 of that Act, a local law or a regulation that is to operate as if it were a local law, or to cancel an authorisation that the applicant has under any of those provisions. It submits that s 3.25 of the LG Act is irrelevant in the present case, and that cl 5.6 of the respondent's Local Law Relating To Advertising Devices is inapplicable.

18 The respondent's submissions are plainly correct. An application for review under s 9.7 of the LG Act can only be lawfully made in one of the circumstances contemplated by s 9.1 of that Act. The present application for review does not purport to be against a refusal to grant an authorisation under Pt 3 of the LG Act, a local law or a regulation that is to operate as if it were a local law. It does not purport to be against a decision to cancel an authorisation under any of those provisions.

19 The recipient of the respondent's letter dated 26 October 2004 might well have been excused for assuming that it was a notice under s 3.25 of the LG Act, given that the letter referred to itself as "this notice", advised that "failure to act on this notice is an offence under the LG Act", and stated that, "should you be aggrieved by this decision, you may ... utilise your right of appeal" under the LG Act. However, none of the circumstances referred to in Div 1 of Sch 3.1 to the Act were applicable in this case. The respondent's letter could not, therefore, have constituted a notice under s 3.25 of the LG Act.

20 Finally, although cl 5.6 of the respondent's Local Law Relating To Advertising Devices provided, for the purposes of s 9.1(3) of the LG Act, that Pt 9 Div 1 of that Act applied in relation to a decision under that Local Law, it does not appear that the respondent made any relevant decision under that Local Law.

21 In consequence, I am satisfied that there is no statutory basis to found the present proceedings and that it is consequently "misconceived". The proceedings must, therefore, be struck out as incompetent.

22 At the directions hearing at which the application to strike out the proceedings was made, I asked counsel for the respondent whether, if the proceedings were struck out, there was any reason why the respondent should not be required to pay the applicant's costs of the proceedings, given the terms of the respondent's letters to the applicant's solicitors and the Minister. Counsel conceded that an order for costs was appropriate in the circumstances.

23 However, in a submission received on 16 March 2005, the respondent's solicitors withdrew the concession in relation to costs, and submitted that each party should bear its own costs of the proceedings.

24 The respondent made two submissions in opposition to the application for costs. First, it submitted that there was no provision in the legislation which allowed the Tribunal to make a costs award against a respondent in circumstances where the Tribunal found there was no jurisdiction for it to consider the substantive application. Second, the respondent submitted that it would be inappropriate to award costs against a respondent in circumstances where the proceedings were commenced on behalf of an applicant by a solicitor. In this regard, the respondent noted that the applicant has been represented by the same solicitors in relation to the signage in question since at least 11 September 1997 and that the applicant's solicitors have had considerable contact with the respondent in relation to the signage.

25 In reply, the applicant submitted as follows:

"We point out that the City of Bunbury is the regulatory authority which created and which enforces the Local Law relating to Advertising Devices. As such, the City of Bunbury by its letter dated 26 October 2004 invited our client to lodge objection or exercise its right of appeal pursuant to the provisions of the Local Government Act 1995 if it felt aggrieved by the City's decision.

Accordingly, neither our client nor ourselves considered it necessary to question whether the right of objection or appeal existed as such right of appeal or objection had been acknowledged by the City of Bunbury as the regulatory authority. ...

If it had not been acknowledged by the City that a right of appeal did exist and that the City recognised that right of appeal, we would have considered on an objective basis precisely what action our client ought to follow as a consequence of the City's decision."

26 I reject the respondent's first submission. In my opinion the Tribunal has power to make a costs order against the respondent under either or both of s 47(2) of the Tribunal Act, which permits the Tribunal to "make any appropriate orders" where proceedings are struck out, and s 87(2) of the Tribunal Act.

27 Section 87 of the Tribunal Act provides, in part, as follows:

(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 ... .

(3) The power of the Tribunal to make an order for the payment by a party for 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 (when bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;

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

28 It is apparent from the terms of s 87(1) of the Tribunal Act that the starting proposition in this Tribunal is that parties bear their own costs in a proceeding. However, s 87(2) 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. Even in circumstances where the Tribunal has determined to strike out proceedings as misconceived, the proceedings remain pending before the Tribunal until they are disposed of by order. Until that time, the applicant and the respondent are parties to a proceeding of the Tribunal. The Tribunal, therefore, has power under s 87(2) of the Tribunal Act to order the respondent in the present case to pay the costs of the applicant.

29 In Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 80 ­ 81[40]; [1998] HCA 11; 96 LGERA 173 at 186 ­ 187, Gaudron and Gummow JJ held in the High Court of Australia as follows 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 section 69 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."

(See also Everett v City of Armadale (2002) 29 SR (WA) 106 at 108 [13].)

30 The Western Australian Civil and Administrative Review Tribunal Task Force Report on the Establishment of the State Administrative Tribunal (May 2002), which recommended the establishment of this Tribunal, and on the basis of which the Tribunal Act and the Jurisdiction Act were drafted, stated at 154 as follows:

"92. Normally, in relation to an administrative review matter, each party should bear its own costs in the proceeding."

31 The statement in the Task Force Report is consistent with the well-recognised position that, in a merits based administrative review of a decision of a local government or other body where the review tribunal is required to exercise the powers of the original decision-maker, it is appropriate that the discretion as to costs be usually exercised such that each party bears its own costs of the merit review: see Gee v Port Stephens Council [2003] NSWLEC 260; (2003) 131 LGERA 325 at 334 [40] and 339 [56]. There are several sound policy reasons which support this approach to the exercise of discretion. First, it ensures that individuals who have had an application rejected or not considered by an original decision-maker or who have been given a direction or notice to do or cease doing something, have an opportunity for the decision to be reviewed without the fear of being ordered to pay costs if they do not succeed. Second, the review tribunal essentially "sits in the shoes" of the original decision-maker before whom the applicant was only responsible for its own costs. Third, although the review tribunal will usually ultimately prefer one party's position over another's, reasonable minds might well differ about an appropriate result as to merit.

32 I have found that there is relevantly no statutory basis for these proceedings. The matter that is the subject of these proceedings does not, therefore, come within the Tribunal's review jurisdiction or indeed within any part of the Tribunal's jurisdiction. Section 87(4) of the Tribunal Act is, therefore, irrelevant. I note, however, that even if s 87(4) were relevant, the two prescribed considerations do not limit the range of relevant considerations as to costs.

33 I accept the applicant's submission that the respondent "invited" the applicant to appeal its decision. Not only did it, as the relevant regulatory authority, advise the applicant that it had an appeal right, but it chose to provide the applicant with what it asserted was the prescribed appeal form. Perhaps most significantly, it advised the applicant that failure to act on the notice was a criminal offence. In these circumstances, the respondent not only invited the appeal, but arguably induced it.

34 On the facts of this case, it is appropriate, in my opinion, for the Tribunal's discretion in relation to costs under s 87(2) of the Tribunal Act to be exercised so as to compensate the applicant for having commenced and prosecuted these proceedings which were futile. The respondent invited, and arguably induced, the commencement of proceedings which were misconceived.

35 The respondent is the responsible regulatory authority which has specified powers under s 3.25 of the LG Act to give a person a notice, non-compliance with which constitutes a criminal offence. It should reasonably know the circumstances in which a right to seek a review of a decision made by it exists. In this case, it erroneously advised the applicant that it had an appeal right against the decision and provided the appeal form to it. In my opinion, in the circumstances, it was reasonable for the applicant and its solicitors not to question the respondent's advice and to seek to exercise the appeal "right". In my opinion, the principal costs order sought by the applicant should be made in order to compensate it for the expenses which it has incurred.

In consequence, the Tribunal makes the following orders:

1. In accordance with s 47(2) of the State Administrative Tribunal Act 2004, these proceedings are struck out.

2. In accordance with s 87(2) of the State Administrative Tribunal Act 2004, the respondent pay the costs of the applicant in commencing and prosecuting the appeal before the Minister for Local Government and Regional Development and the application for review, including the costs of the respondent's application to strike out the proceedings and the issue of costs, as agreed or, on application by either party, as assessed by a member of the Tribunal in accordance with r 43 of the State Administrative Tribunal Rules 2004.

I certify that this and the preceding thirteen pages comprise the reasons for decision of the Tribunal.

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