On 18 November 2019 the Tribunal dismissed an application for review of a decision of the ACT Planning and Land Authority (ACTPLA) without proceeding to hearing of that application. These are the reasons for that decision.
[3]
The property at Block 20 Section 16 O'Malley is owned by Chris Maleganeas (the owner). It has for some years been leased for use as an embassy. However, the lease purpose clause only permits residential use. Some of the neighbours ultimately applied to ACTPLA for a controlled activity order in relation to the use of the land for an embassy, and the construction (apparently without development approval) of a guardhouse and fence. ACTPLA failed to make a decision within the requisite time, so the neighbours applied to the tribunal for review of that deemed refusal decision.
The tribunal conducted a hearing and on 30 November 2018 decided to set aside ACTPLA's decision and replace it with a decision to make a controlled activity order.
The position of the owner in that matter was that development applications (DAs) had been submitted for variation of the lease purpose clause, and approval of the fence and guardhouse, and once these DAs were approved there would be no grounds for a controlled activity order.
In recognition of this possibility, the controlled activity order substituted on 30 November 2018 was expressed to take effect only after ACTPLA's decision on the specified DAs, or proceedings in the tribunal for review of those decisions, were at an end.
The relevant orders of 30 November 2018 were as follows:
The decision dated 6 August 2018, which was a deemed refusal to make a controlled activity order and which is the subject of the Application is set aside.
Pursuant to section 351 of the Planning and Development Act 2007 (PDA) the following controlled activity orders (orders) are made in relation to the following controlled activities on the land. The crown lessee of the land is directed to comply with these orders within 3 months of these orders coming into effect:
(a) Regarding the controlled activity "failure by the crown lessee to comply with a provision of a lease," namely to use the land for residential purposes only: the crown lessee is directed to comply with the requirements of the crown lease for the land as granted by the respondent on 27 February 1989, that is to use the land for the purposes provided by the crown lease.
(b) Regarding the controlled activity "having a structure that was constructed without approval required under the PDA", namely the front fence located along the perimeter and in front of the building line, gate and security guard post: the crown lessee for the land is directed to demolish the structures front fence located along the perimeter and in front of the building line, gate and security guard post that has been constructed without development approval or permission required under a territory law.
Orders made under paragraph 2 above, take effect 28 days following the day on which the planning and land authority (the respondent) makes its decision in relation to DA 201834682 (lodged on 15 October 2018) and DA 201834821 (submitted on 2 and 19 November 2018), unless one or more of those decisions is subject of an ACT Civil and Administrative Tribunal (ACAT) merits review proceeding, in which case, 14 days after the day on which the ACAT publishes its decision in respect of those merits review application/s.
[4]
The application for variation of the crown lease purpose clause
[5]
On 21 December 2018 ACTPLA refused the DA for variation of the crown lease purpose clause to permit use as diplomatic residence/and or chancellery.
The owner sought an internal reconsideration of that decision, and on 4 April 2019 the initial refusal was confirmed (ACTPLA's decision).
The owner then (on 3 May 2019) filed an application in the tribunal seeking review of ACTPLA's decision. Ultimately, six of the neighbours were joined to the application as interested parties.[2] The application was prepared for a hearing to be conducted over two days in late August 2019. Documents were filed as directed and everything was in order.
In early August 2019 the owner died. King & Wood Mallesons (KWM), the solicitors for the owner, promptly advised the Tribunal and the other parties, and the matter was brought in for a mention on 16 August 2019. At that mention, Mr Randall of KWM was given leave to appear[3] and Mr Clynes of Counsel appeared for ACTPLA. It was agreed that the hearing in late August should not proceed, and those dates were vacated. The matter was listed for a mention on 9 September 2019.
On 9 September 2019 Mr Randall of KWM again appeared with leave and Mr Phillipson appeared for ACTPLA. The tribunal was advised that a will had been identified but there had not yet been any application for probate, and the executors of the will were waiting to obtain legal advice on a number of matters including whether the proceedings could and should be continued, or not. The matter was adjourned to a directions hearing on 30 September 2019, with the reminder that the proceedings could not remain in limbo forever, and on that occasion a hearing date would be set. The tribunal also required ACTPLA to send a copy of the orders to the Public Trustee and Guardian (PTG), in whom the owner's estate vests pending probate of the will being granted.[4]
On 30 September 2019 Mr Randall appeared with leave, Mr Phillipson appeared for ACTPLA, two of the parties joined appeared on their own behalf, and Mr Hancock of the ACT Government Solicitor appeared for the PTG. The matter was listed for hearing on 28 and 29 November, with a final directions hearing to occur on 18 November 2019. In setting a resumed hearing date, the Tribunal was concerned that the proceedings not remain indefinitely on hold, because the existence of the proceedings was operating as a stay of the operation of a controlled activity order.
[6]
When the matter was called on 18 November 2019 Mr Clynes of Counsel appeared for ACTPLA, Mr Hancock appeared for the PTG, the parties joined Mr Inglis and Mr Kennedy appeared on their own behalf, and Mr Randall of KWM was given leave to appear.
Mr Clynes provided the Tribunal with:
(a) a copy of the orders of 30 November 2018;
(b) an copy of an advertisement of the executors intention to apply for probate, dated 29 October 2019;
(c) email correspondence from Symons Phillips to the ACT Government Solicitor dated 29 October 2019 in which it was stated: "The executor for the estate has conveyed his position to seek a discontinuance of the litigation proceedings. The Executor requests that no further steps to continue the proceedings are taken by the Public Trustee and Guardian";
(d) a letter from ACT Government Solicitor to Symons Phillips and KWM dated 12 November 2019, copied to the PTG, advising of the intention to raise dismissal of the application as a matter for consideration by the Tribunal at the directions hearing on 18 November 2019.
Mr Clynes submitted that it would be open to the Tribunal to dismiss the application for review under section 56(d)(i) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) as it might be considered by the Tribunal to be 'appropriate' in the highly unusual circumstances of this case. This was because either the right to review ACTPLA's decision did not survive the death of the applicant or, if the right did survive, there was a clear intention for the proceedings to be discontinued. He pointed out that no person was seeking to be substituted on behalf of the applicant to pursue the application[5], and no party opposed the making of orders for dismissal. Mr Clynes provided the Tribunal with the cases cited in these reasons as illustrations of the way the death of a party has been dealt with in other jurisdictions.
Mr Kennedy submitted that the Tribunal should make orders dismissing the application. He said:
(a) the Tribunal had power to dismiss the application under section 56 of the ACAT Act;
(b) it was the first anniversary of the orders of 30 November 2018 imposing a controlled activity order;
(c) those orders had only been sought and made after years of attempts by the neighbours to deal with the problems caused by inappropriate use of the property;
(d) inappropriate use of the property continues while these proceedings are on foot;
(e) it was clear to the parties joined, from the material filed, that there was no technical error in the decision under review and the application for review lacked merit;
(f) the neighbours were concerned that these proceedings were brought as a process of delay and obfuscation; and
(g) they were concerned that the proceedings would just drag on and on for no good reason.
Mr Hancock on behalf of the PTG said that he was instructed to neither consent to nor oppose the proposed dismissal of the application. He advised that the PTG did not consider it would be appropriate to undertake the litigation itself in its current role, because there are restrictions on the PTG being an active proponent of litigation which might be a drain upon the estate, as opposed to defending an action brought against the estate.
However, Mr Hancock submitted that having heard the submissions of Mr Clynes and noting the cases referred to, he had concerns that the executors might not be aware that they could seek to be joined as parties in their own right, or appear on their own behalf before the Tribunal and be heard in relation to continuation of the proceedings. He submitted that the question of joinder of the executors under section 29 of the ACAT Act must be properly considered prior to any action being taken under section 56 to dismiss the application, in order to secure a more 'durable' decision.
Mr Randall advised that the proposed dismissal of the application was neither consented to nor opposed. He confirmed that the email of 29 October 2019 accorded with KWM's interactions with the executors, who appeared to "have no appetite" for the proceedings. He said that he had not specifically advised the executors that they might apply to be individually joined to the proceedings, and offered to attempt to contact the executors by telephone to ascertain whether they wished to be joined as a party to the proceedings in their own right.
Mr Inglis opposed any application to adjourn the question of dismissal of the application and submitted that:
(a) nobody should be taken by surprise by the proposal that the proceedings be dismissed: this had clearly been foreshadowed in the letter of 12 November 2019;
(b) the owner passed away more than three months ago;
(c) there has never been any appearance by or on behalf of an executor in these proceedings;
(d) KWM has appeared on every occasion, albeit with no instructions and with the aim of assisting the tribunal, and has now confirmed that they have advised the executors of the outcome of each mention;
(e) the executors clearly have no appetite for being involved in this litigation, and this should also be no surprise because they too have a duty to preserve the estate and not dissipate it;
(f) a decision not to dismiss the application at this stage, and continuation of the proceedings, has an impact on all of the parties as individuals. There is an impact in terms of reading mail, filing documents where required, and attending to requests by the tribunal. The parties joined have set aside the days for the hearing, and will attend where able.
(g) this impact on the parties may be a small matter compared to the public interest, but there is also a public interest in tribunal resources. He assumes hearing dates in the tribunal are precious and the tribunal will have no difficulty putting the November dates to good use if the proceedings are dismissed and the hearing vacated.
[7]
When an applicant for proceedings for review of a decision dies, the first and fundamental question is whether or not the right to review of the decision continues. It was submitted on behalf of ACTPLA that this question was, to say the least, complicated. No party was in a position to express a confident opinion on the point.
From the authorities provided, it seems that the answer to whether proceedings can be continued after the death of the applicant turns upon the nature of the proceedings. For civil proceedings the common law approach was that where the claim was 'personal to' the applicant it would not be transmissible upon death and would abate.[6] A similar approach applies for criminal proceedings against a deceased defendant.[7]
In proceedings for review of administrative decisions, the question must be determined by reference to the legislation providing for the decision, and for the right of review. For example, legislation may specifically provide that the rights of the applicant under the statute survive the applicant's death. If there is no specific provision, then the legislative scheme as a whole must be considered, with regard to the facts of the individual case, to determine whether the right to review is transmissible in the case or not. A right to review a decision the consequences of which are purely 'personal' to the deceased applicant will abate upon death of the applicant. Rights to review of decisions which are not entirely 'personal' may be considered 'transmissible'. In such cases the proceeding does not abate on death of the applicant, on the contrary the proceeding remains and may be continued by the person in whom that right then vests.[8]
The ACAT Act and Planning and Development Act 2007 do not make provision for the consequences of the death of an applicant. To determine the fundamental question, it would be necessary to consider the legislative scheme as a whole, and find the answer on the facts of this case. It would be a cause of expense to all of the parties, and create further delay, if the tribunal were to embark on a determination of this issue. This is why it was decided at an early stage to allow the executors time to take advice, as to whether they would wish to proceed with the litigation if able to do so.
By 18 November 2019 the executors' view had been communicated via their lawyer - they intend to discontinue the proceedings. Consequently, there seemed little utility in embarking upon a determination of the fundamental question of whether the right to review was transmissible or not.
The next question for consideration was: should the tribunal dismiss the application for review on 18 November 2018, or hold off on any action until the scheduled hearing dates later in November, or adjourn the proceedings for a longer period of time until probate could be granted and the proceedings formally discontinued by the executors?
The parties acknowledged that under section 56(d)(i) the Tribunal had the power to dismiss the application for review, if it considered that course of action to be 'appropriate'.
Whenever a procedural issue arises in the Tribunal for which there is no provision in the ACAT Act, Rules[9] or procedural directions[10], the Tribunal must tailor an individual response to the issue. In doing so the Tribunal will balance the sometimes competing factors set out in section 7 of the ACAT Act:
[8]
_In exercising its functions under this Act, the tribunal must - _
[9]
(a) ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
[10]
(b) observe natural justice and procedural fairness.
[11]
In considering whether to adjourn the resolution of the matter until the scheduled hearing dates later in November, it seemed to me that there was no good reason for putting off to 28 and 29 November the consideration of whether to dismiss the application. As highlighted by Mr Inglis, the reservation of the hearing days had an impact upon the parties and the tribunal. It would be to cause further delay and inconvenience for no benefit to any party or the administration of justice.
The next option was whether to adjourn the proceedings generally until the formal grant of probate, so as to allow the executors to be substituted for the owner and discontinue the proceeding. This option would be a cause of delay, result in expense to all of the legally represented parties and to the estate, and cause personal inconvenience to everyone involved. Additionally, given that the existence of these proceedings is operating as a stay of the controlled activity order, I considered such further delay to be contrary to the interests of justice. I did not consider it appropriate that the Tribunal delay dismissing the proceeding simply so that the executors could in due course apply to be substituted as a party in order to discontinue it.
There was, of course, the possibility that the executors might change their mind on their course of action while awaiting the grant of probate. However, I took into account that they are legally represented, and have been advised by two reputable firms over a period of some months as to their options. Their view seems to have remained consistent.
In relation to the concern that the Tribunal should hold off on a decision to dismiss the application until it was satisfied that the executors had been advised that they could apply to be joined as parties in their own right, I did not share that concern and I declined Mr Randall's offer to attempt to contact the executors.
As set out in section 7 of the ACAT Act, the Tribunal is required to observe the requirements of procedural fairness and natural justice. This obligation may apply not only to parties but also to prospective parties. The relevant aspect of procedural fairness in this matter is the hearing rule: the requirement that a person whose interests are affected by a decision that is to be made knows that the decision is to be made and is given opportunity to be heard before the decision is made.[11]
In terms of the first element, I was satisfied that the PTG as current trustee, and the executors as future trustees, were aware of these proceedings. In addition, the correspondence of 12 November 2019 clearly foreshadowed that dismissal of the application would be considered on 18 November 2019. To further adjourn the matter would be to add nothing to this aspect of the requirements of natural justice.
In terms of the second element - the opportunity to be heard - I considered that adequate time and opportunity had been provided. Mr Clynes drew the Tribunal's attention to rules 231 and 233 of the Court Procedures Rules 2006, which together contemplate a period of three months during which an application to substitute a person for the deceased party can be made. If no such application is made, the proceedings may be finalised. Those rules do not apply to the Tribunal, but it is of some guidance to note that a period of three months is considered adequate for interested parties to make application to the Court to be substituted as an applicant. In this case, more than three months had passed.
I also took into account in relation to the opportunity to be heard that the Tribunal is not a difficult forum to access. This is apparent from the procedural history of this matter. Six parties, representing themselves, applied to be joined to these proceedings, and were joined. Two of those six subsequently withdrew from the proceedings. Mr Randall of KWM attended on numerous occasions. He was granted leave to appear and render what assistance he could. Had any of the executors or any other person asserting an interest in the matter wished to attend the proceedings and express a view that the application for review should proceed, they could have done so at any time in the last three months. They have not.
Specifically, I was not satisfied that natural justice and procedural fairness required the Tribunal to satisfy itself as to the content of any legal advice that may have been obtained by the executors.
For these reasons, I was satisfied that it was appropriate on 18 November 2019 to proceed to consider whether to dismiss the application or not.
Given that:
(a) more than three months had passed since the death of the applicant;
(b) the current and prospective trustees of the estate were aware of the proceedings;
(c) no person had stepped forward to stand in the shoes of the late applicant to advance the application;
(d) there was no suggestion that any party or person sought that the proceedings continue; and
(e) the mere existence of the proceedings operated as a stay on a controlled activity order made a year earlier
[12]
I was satisfied it was appropriate for the Tribunal to make orders for the application to be dismissed.
[13]
King & Wood Mallesons (by leave without instructions)
[14]
[2] By the time of the hearing on 18 November 2019, two of those parties joined had withdrawn from the proceedings.
[15]
[3] KWM's retainer by the owner was brought to an end by his death: see the discussion in Kalejs v Minister for Justice & Customs[2001] FCA 1769 at paragraph [10]. In such cases, the solicitors for the deceased party are usually given leave to appear.