FRY v ACT PLANNING AND LAND AUTHORITY NO.2

(a) when the reviewable decision was made under the 2007 P & D Act (1 November 2024), (b) when the 2023 Act repealed the 2007 P & D Act (27 November 2024), (c) when the Applicant filed her Review Application regarding the development Application (the DA) (2 December 2024), and (d) when the Tribunal made its decision regarding the Application for Review (28 February 2025).

3. Importantly, as noted in part3 of the Applicant’s primary submissions regarding costs (filed 14 March 2025), “the transitional provision in s.613 of the 2023 Act preserved the application of the repealed 2007 Act to the development approval subject to review.”

4. On 28 February 2025, this Tribunal made Orders (the Orders) dismissing a Review Application (the Application) filed 2 December 2024. This was in circumstances where (a) a conditional development approval (the CDA) had been surrendered by the owner of the property in question, in consequence of which (b) the Respondent Authority (the Authority) invited the Applicant to withdraw the Review Application, but (c) the Applicant declined that invitation, and the Review Application proceeded. As noted, the Application was dismissed.

5. The Orders of 28 February 2025 provided, among other things, that absent any Application being filed within seven days there should be no Order as to costs.

6. Rather promptly after the Orders were pronounced, on 4 March 2025, the Joined Party (for convenience and more regular usage, in these reasons this person will be referred to in the more usual style of Third Party) filed an Application seeking costs. On 7 March 2025, the Respondent (ACTPLA) filed an Application also seeking costs.

7. On 14 March 2025, the Applicant filed a Response which, unsurprisingly, opposed any Order for costs that was adverse to her.

8. The parties were directed to file written submissions on the issue of costs. They did so; they are reproduced below.

9. Because of some curious features of statutory interpretation that were raised by the Applicant, the Tribunal directed that there be a hearing on costs. The further hearing arising out of the costs submissions took place on 3 April 2025.

10. The Applicant took this opportunity to provide further materials to the Tribunal, as did the other parties but in much less volume. The Applicant had already filed, without any prior Order allowing it to occur, further submissions, but neatly (albeit a tad presumptuously) sought leave by email to rely upon them. Thus, the Applicant had, as it were, something like “three bites of the cherry”, so to speak: primary submissions, until leave was sought and granted, unauthorised submissions in reply, and further materials submitted during the supplementary hearing. Perhaps all of this simply showed the eagerness (or perhaps concern) about the costs Orders sought by the other parties as a consequence of the actions taken in the course of the litigation by the Applicant, especially after the surrender of the Development Application and the Respondent Authority inviting the Applicant to discontinue the proceeding. As recorded elsewhere, that invitation was rejected and the litigation continued.

11. I should also add here, in no pejorative way, that although there was regular reference in the principal reasons, and likewise in these reasons, to “the Applicant”, throughout the proceeding, she has been “represented” by her highly experienced litigation lawyer Husband/partner. This takes on some relevance as explained below, notably in the light of oral submissions made on behalf of the Third Party.

12. The Respondent Authority seeks costs of $2,180. The Third Party had incurred costs of $15,500 but sought only $5,500. For the reasons that follow, the Third Party and the Respondent should have Orders for costs in their favour as sought.

Brief decisional background

13. The detailed background to the ongoing dispute before the Tribunal is set out in full in the principal reasons that were delivered on 28 February 2025. For current 1 purposes, it is sufficient that the following matters be briefly noted from it.

14. At [11], the Tribunal said:

In conformity with the operation of s.211(2)(d) of the Planning Act 2023 (ACT), as the Authority’s letter confirmed, in the light of the surrender accepted by the Authority, the conditional approval “has ended and can no longer be relied upon”.

15. At [12], the Tribunal continued:

…to continue the Review Application of what might occur, at some unknown time in the future, but also noting that there may never be any future or further development Application at all, is so speculative that it would render any view of the Tribunal as necessarily, and dangerously, “advisory.”

16. And at [15] and [16], the Tribunal stated (internal citations omitted):

[15] The objects and principles of the Tribunal’s principal legislation reflect now long-standing High Court jurisprudence regarding the importance of tribunals … being highly cognisant of the impact of using scarce public resources and the flow-on effects on other litigants. In my view, a hearing regarding the possible impact, at some unknown time in the future, about events which may not actually eventuate, readily comes within the cautions articulated by the High Court in AON v ANU. Indeed, at [105], the plurality cautioned about reliance upon simply “arguable” contentions,

1 Simply as a historical footnote (in every sense), the hearing of the substantive Application took approximately 1¼ hours. On the discrete issue of costs, the hearing took almost exactly the same amount of time. Accepting how relatively narrow both aspects litigated are, perhaps this explains this curiosity regarding the time expended in each aspect of the litigation – principal issue of review, and costs. which properly characterise Ms Fry’s contentions here about possible future use of the now defunct DA. [16] Put another way, given the surrender of the development Application, and its acceptance by the Authority, there is no substantive dispute remaining. The Applicant opposed the development Application. The Authority granted the Application on conditions. The same Authority has now accepted the surrender of the Application. In effect and in reality, given her opposition to the Application, the Applicant has secured what she wanted, namely that the Application no longer proceed. Accordingly, there is no legal or justiciable dispute still on foot. That is now the legal reality…

17. At [17], the Tribunal also said: nd … in the Applicant’s Application for Review, filed 2 December 2024, the only relief sought was an Order that “the development Application be set aside.” The surrender has achieved precisely what the Applicant sought. Moreover, given the single prayer for relief, there has been no formal Application to amend to seek further “relief”, such as to review the reasons for the decision, effectively in its entirety. As argued at the recent hearing, the Applicant is “concerned” that although the surrender has been accepted by the Authority, its decision remains. Respectfully, this is a legal non sequitur; nothing flows from this contention, nor can it. The development Application is now defunct. Any new Application, if ever filed, must be considered on its terms and the facts and circumstances then prevailing, and not on the facts and circumstances that prevailed in 2004. Anything now sought by the Applicant, in the light of the surrender, is necessarily an exercise in legal supererogation.

18. The remainder of the reasons dealt with principles regarding summary dismissal. I need not repeat them, except to record the summary of the disposition of the review Application at [26] in the following terms (internal citations omitted):

[26] The objects and principles that must guide the Tribunal regarding any Application before it, set out in ss.6 and 7 of its principal Act, further militate against the Applicant’s review Application proceeding. At its highest, such review, in the light of the surrender of the earlier development Application, (a) would be an entirely theoretical exercise and would serve no proper adjudicative function or purpose cf Jefferson Ford; Spencer v The Commonwealth; Three Rivers; Mainore Pty Ltd; CIC Australia Limited; (b) according to High Court authority in AON v ANU, would require the expenditure of scarce public resources on a theoretical dispute, with such resources more properly being directed to matters that require resolution and determination of actual disputes; (c) would be contrary to principle regarding [dis]proportionate weighing of a hearing against the possible outcome it might achieve, especially since the original development Application is now defunct; (d) would simply duplicate what the Applicant sought in her Review Application, namely that the Development Approval be set aside; (e) would seek to adjudicate a dispute where there are no factual or evidentiary issues to be determined, and which would, in any event, be of no import or effect (at the recent hearing, there was no submission that the earlier decision of the Authority would constitute some form of estoppel or res judicata); and (f) any adjudication of the review Application would be nothing more than an advisory opinion in circumstances where there is no evidence that there will (or might) be a further Application, and if such Application is made, what the facts and circumstances at that time will (or might) be for the Authority to consider. Any future DA would require the Authority to consider the facts and circumstances then relevant, and not those in 2024 at the time of the original Application. Submissions Applicants submissions

19. The Applicant’s outline of costs submissions was as follows: 1. The respondent’s costs submissions at [12], filed 21 March 2025, state that the respondent proposes to seek orders that the applicant pay the respondent’s costs of seeking costs if the applicant is given the opportunity to make any further submissions about costs as requested by the applicant - see [30] of the applicant’s response filed 14 March 2025 to the costs applications of the other parties under s 48(2)(d) of the ACAT Act. 2. With a view to minimising any further trouble and expense for the Tribunal and parties, the applicant seeks leave to file these further submissions on costs, on the basis that the applicant would then not seek to be further heard as to any of the matters referred to in [30] the applicant’s response on costs filed 14 March 2025. 3. The applicant otherwise continues to rely on the submissions in the applicant’s response filed 14 March 2025 that the Tribunal does not have power under s 48(2)(d) of the ACAT Act to order costs in this matter. 4. If, contrary to the applicant’s primary submission (set out in the response filed 14 March 2025), the Tribunal has power under s 48(2)(d) of the ACAT Act to order costs in this matter, the applicant submits that the Tribunal should not do so as a matter of discretion on the basis that in all the circumstances it is not fair or just to order any costs against the applicant. The applicant submits that the following matters are relevant to the Tribunal’s exercise of discretion. a. Overall the application for review was successful. The Tribunal has found that the surrender by the party joined of the development approval was equivalent to the Tribunal setting aside the respondent’s decision to give the approval: see eg [26] and [29](d) of the Tribunal’s reasons for decision dated 28 February 2025. b. The applicant has not put the Tribunal and parties to trouble and expense by seeking to recover any costs or application fees. c. The decision of the applicant to not discontinue does not warrant the applicant being required to pay costs. As reflected in the Tribunal’s carefully considered reasons for decision dated 28 February 2025, the position was not so obvious that it was unreasonable for the applicant to raise for determination the effect of the surrender on the Tribunal’s review. As submitted at the time, the applicant then considered the case law as it then stood did not require the applicant’s discontinuance. d. If the legislation had intended that a surrender automatically dispose of an application for review it could have so provided. e. On the face of the express terms of the ACAT Act the Tribunal has no power to award costs in these proceedings. If the Tribunal has any such power its source is obscure and not transparent to any applicant in proceedings such as the present commenced after the repeal of the Planning and Development Act 2007 and concerning a development approval under the repealed Planning and Development Act 2007. Party Joined (Third Party) submissions

20. The Party Joined outline of costs submissions was as follows:

21. On 28 February 2025, Senior Member Dr W J Neville made orders dismissing Review Application AT133/2024 filed on 2 December 2024 and the subpoena issued by the Applicant. 2. The Party Joined seeks an order that the Applicant pay the reasonable legal expenses incurred by the Party Joined from 15 February 2025, because: 3. on 6 February 2025 the delegate of the Territory Planning Authority, notified the Party Joined that the Authority had accepted his surrender of the approval, which had therefore ended and could no longer be relied upon; (a) on 12 February 2025, the Respondent wrote to the Applicant’s representative enclosing a copy of the notification and invited the Applicant to file a notice of discontinuance in these proceedings; (b) on 12 February 2025, the Party Joined requested that the Tribunal dismiss the review proceedings; and (c) by email on 15 February 2025, the Applicant’s representative advised that the Applicant refused to discontinue the Proceedings and pressed for the Review Application to be heard. 4. The application for dismissal of the Review Application was listed on 18 February 2025 for directions and was heard before Senior Member Dr W J Neville on 19 February 2025. 5. As a consequence of the Applicant’s conduct, the Party Joined incurred unnecessary legal expenses. ACAT’s Power to Order Costs 6. Section 48(d) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that: “(d) if the application is an application for review of a decision under the Heritage Act 2004, the Planning Act 2023, or the Urban Forest Act 2023, and the tribunal makes an order under section 32 (2) (Dismissing or striking out applications)—the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application.” 7. In accordance with section 48(d) of the ACAT Act the Party Joined seeks an order that the Applicant pay the reasonable legal expenses of the Party Joined. 8. The Applicant submits that because the application for review was for a review of a decision made under the Planning Act 2007 and the relevant provision in the ACAT Act refers to the Planning Act 2023, the Tribunal is unable to award costs. The savings provision of the Legislation Act 2001 9. Section 84 of the Legislation Act 2001 provides (1) The repeal or amendment of a law does not: (a) revive anything not in force or existing when the repeal or amendment takes effect; or (b) affect the previous operation of the law or anything done, begun or suffered under the law; or (c) affect an existing right, privilege or liability acquired, accrued or incurred under the law. (2) An investigation, proceeding or remedy in relation to an existing right, privilege or liability under the law may be started, exercised, continued or completed, and the right, privilege or liability may be enforced and any penalty imposed, as if the repeal or amendment had not happened. (3) Without limiting subsections (1) and (2), the repeal or amendment of a law does not affect (a) the proof of anything that has happened; or (b) any right, privilege or liability saved by the law. (4) This section does not limit any other provision of this chapter and is in addition to any provision of the law by which the repeal or amendment is made. (5) This section is a determinative provision. 10. When the amendment of the ACAT Act became effective on 27 November 2024, the Party Joined had a number of rights including: (a) the right to undertake a development on the land registered in his name in accordance with the approval granted by the Planning Authority on 1 November 2024 (the DA); (b) the right to amend or vary the DA; (c) the right to be notified of an application for review of the decision granting the DA; (d) the right to be joined to any review application; (e) the right to seek payment of his costs in the event that any such review application was dismissed by ACAT. 11. A recent decision in ACAT, Cousins v Construction Occupations Register ACT Civil and Administrative Tribunal July 04, 2024 [2024] ACAT 48 considered the issue of the effect of amended legislation on the rights of parties and the effect of section 84 of the Legislation Act on subsequent legislation. 12. This case considered whether a limitation in an old act gave the applicant a right or immunity which protected by the common law presumption that “it is accepted law that accrued rights, privileges, obligations, or liabilities acquired under the previous law are generally preserved unless the amending legislation explicitly states 2 otherwise” . 13. Senior Member Orr found that the party could rely on the presumption. 3 14. As noted in Senior Member Orr’s decision : “section 85 is a determinative provision under the Act. Such a determinative provision can only be displaced expressly or by a manifest intention.” 15. The amending legislation does not expressly exclude an application for a cost order in respect to a review application under the Planning Act 2007. Accordingly the Patry Joined is entitled to rely on the provisions of s48(d) of the ACAT Act. Section 48(b) of the ACAT Act 16. In the alternative, the Party Joined seeks to rely on Section 48(b) of the ACAT Act which provides: “(b) if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay

2 at [120] 3 at [165] the reasonable costs of the other party arising from the delay or obstruction;” 17. On 12 February 2025 the Respondent formally advised the Applicant that the Authority had accepted the Party Joined’s surrender of the approval, which had therefore ended and could no longer be relied upon. The Applicant was invited to withdraw their application on this date. 18. The Applicant refused to withdraw the application. As a result of the Applicant’s refusal to withdraw the application, the Respondent and the Party Joined were required to incur the cost of attending the directions hearing on 18 February 2025, and preparation for and attendance at the hearing of the matter on 19 February 2025. 19. As ultimately held by Senior Member Dr W J Neville: “given the surrender of the Development Application, and its acceptance by the Authority, there is no substantive dispute remaining. The Applicant opposed the DA. The Authority granted the Application on conditions. The same Authority has now accepted the surrender of the Application. In effect and in reality, given her opposition to the Application, the Applicant has secured what she wanted, namely that the Application will no longer proceed. Accordingly, there is no legal or justiciable dispute still on foot.” 20. Noting that: (a) the objects of ACAT include ensuring that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and (b) the principles of the ACAT provide that in exercising its functions under this Act, the tribunal must: “(a) seek to ensure the procedures of the tribunal: (i) are as simple, quick, inexpensive and informal as is consistent with achieving justice; and (ii) are implemented in a way that facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceeding; and (b) observe natural justice and procedural fairness.” the Party Joined submits that the Applicant, by persisting in her application for review when there was “no legal or justiciable dispute still on foot”, caused unreasonable delay or obstruction before or while the tribunal was dealing with the application and seeks that the tribunal make orders for the Applicant to pay the reasonable costs of the Party Joined. 21. The Party Joined seeks orders that the Applicant pay the reasonable legal costs from 15 February 2025, including for attendance at the directions hearing on 18 February 2025 and preparation and attendance hearing on 19 February 2025. 22. The Party Joined seeks an order for the Applicant to pay the legal expenses incurred by the Party Joined, (calculated in the ordinary or party/party basis) in the lump sum amount of $5,500 inclusive of GST. Respondents submissions

21. The Respondents outline of costs submissions was as follows:

22. On 15 February 2025, the Applicant indicated to the Tribunal and Parties that the matter should proceed to a substantive hearing despite the surrender of the Development Application (DA) under review and did not file a notice of discontinuance as invited to do so by the Respondent on 12 February 2025 (Attachments A and B). 2. On 18 February 2025 a directions hearing was listed, essentially to determine how to proceed given the surrender of the DA as well as how to deal with the subpoena objection in those circumstances. Again, the Applicant refused to discontinue the proceeding and so the Party Joined’s applications to dismiss the proceedings and to set aside a subpoena were listed for hearing. The Respondent and Party Joined were willing to have those applications heard very shortly after the directions hearing, however, at the request of the Applicant for further time to prepare, it was listed and heard the following day. 3. On 28 February 2025 the Tribunal dismissed the application for review and the subpoena. 4. Because the Applicant refused to discontinue the application for review, the Respondent seeks that its reasonable legal costs be paid by the Applicant for the costs associated with the hearings listed on 18 and 19 February 2025. Those costs consist of the ACT Government Solicitor preparing for those hearings, attending the hearings, and drafting submissions, and amount to $1,496.00 (Attachment C). 5. Pursuant to s 48(2)(d) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), in some circumstances the Tribunal may order costs arising from an application for review of a decision under the Planning Act 2023 (Planning Act). The reference to the Planning Act was inserted upon the commencement of the Planning Act which repealed the previous Planning and Development Act 2007 (P&D Act), under which the reviewable decision was made. The previous s 48(2)(d) referred to the P&D Act. It is clear that the statutory intention is that costs are able to be ordered by the Tribunal in relation to an application for review of a planning decision, whether under the old or new planning legislation. 6. Further, s 84 of the Legislation Act 2001 (Legislation Act) relevantly states (my emphasis): 84 Saving of operation of repealed and amended laws (1) The repeal or amendment of a law does not— (a) revive anything not in force or existing when the repeal or amendment takes effect; or (b) affect the previous operation of the law or anything done, begun or suffered under the law; or (c) affect an existing right, privilege or liability acquired, accrued or incurred under the law. 7. Section 84 at (1)(b) provides that the previous operation of an Act is not affected by its repeal. Accordingly, the repeal of the P&D Act does not affect the Tribunal’s ability to order costs under s 48(2)(d) of the ACAT Act. 8. Section 84 applies as a determinative provision whenever an Act is repealed, unless it is displaced expressly1 or by a manifest contrary intention.2 There is no evidence of either in this case. 9. The Respondent submits that the effect of ss 32 and 48 of the ACAT Act and s 84 of the Legislation Act is to preserve the ability of the parties to seeks their costs against the Applicant, notwithstanding that the P&D Act has been repealed. 10. A relevant limitation in s 48(2)(d) of the ACAT Act to ordering costs is that the Tribunal must have made an order under s 32(2) of the ACAT Act. The Party Joined sought orders on the basis of either s 32 or s 56(d) of the ACAT Act. The Respondent submitted that orders be made only under s 32(2)(b). The written reasons for the decision to dismiss the application for review does not identify the power under which the decision was made. If the Tribunal relied on s32(2) of the ACAT Act, it has power to make an order pursuant to s 48(d) of the Act. 11. The Respondent submits that in those circumstances, the Tribunal should make orders that the Applicant pay the Respondent’s reasonable costs incurred in relation to the hearings listed on 18 and 19 February 2025, namely $1,496.00. 12. If the Tribunal does not make those orders in chambers, and the matter proceeds to further hearing on costs – as requested by the Applicant – the Respondent proposes to amend its application for costs to include its reasonable costs in seeking costs. Outline of principle

23. The primary points of reference for the current Applications in relation to costs are as follows.

24. First, section.32 of the ACAT Act relevantly provides:

(1) This section applies if the tribunal considers that an application, or part of an application is–– (a) frivolous or vexatious; or (b) lacking in substance; or (c) otherwise an abuse of process; or (d) made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious. (2) The tribunal may, by order, do 1 or more of the following: (a) refuse to hear the application or part of the application; (b) dismiss the application or part of the application; (c) direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction— (i) within a stated period of time; or (ii) without the leave of the tribunal. Note If the application is for review of a decision under the Heritage Act 2004, the Planning Act 2023 or the Urban Forest Act 2023, the tribunal may also order the applicant to pay costs (see s 48 (2) (d)). (3) The tribunal may make an order under subsection (2) on its own initiative or on application by a party.

24. Secondly, section 48 of the ACAT Act relevantly provides:

48 (1) The parties to an application must bear their own costs unless this Act or another territory law otherwise provides or the tribunal otherwise orders. (2) However— (a) if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant–– (i) the filing fee for the application; and (ii) any other fee incurred by the applicant that the tribunal considers necessary for the application; or (b) if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; … (d) if the application is an application for review of a decision under the Heritage Act 2004, the Planning Act 2023, or the Urban Forest Act 2023, and the tribunal makes an order under section 32 (2) (Dismissing or striking out applications)—the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application.

25. Section 48(3) further provides that:

For subsection (2)(d), reasonable costs of the other party arising from the application include reasonable legal costs but do not include holding costs.

26. As noted above, s.48(2)(d) of an earlier version of the ACAT Act referred to the Planning and Development Act 2007.

27. Thirdly, s.84 of the Legislation Act 2001 (ACT), as far as is relevant to the current matter, provides as follows:

84 Saving of operation of repealed and amended laws (1) The repeal or amendment of a law does not— (a) revive anything not in force or existing when the repeal or amendment takes effect; or (b) affect the previous operation of the law or anything done, begun or suffered under the law; or (c) affect an existing right, privilege or liability acquired, accrued or incurred under the law.

28. As for jurisprudence regarding “costs”, and recording without criticism that no one referred to the basal principles regarding costs generally, accepting that the Third Party referred to one earlier decision of the Tribunal and that the Applicant noted a range of decisions that were cited in the extract from Professor Pearce’s 4 text Interpretation Acts in Australia, I note the following briefly.

29. As a general proposition, in Latoudis v Casey, the High Court confirmed that, absent statutory regulation, as is the case here under ss.32 and 48 of the ACAT Act, it is usually just and reasonable that a party who causes another to incur legal costs should reimburse the other party for those costs. Mason CJ said, at [13]

4 nd D Pearce, Interpretation Acts in Australia (2 Edition) (Sydney: LexisNexis, 2023). (emphasis added with particular reference upon the compensatory, not punitive, 5 nature of costs):

If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings…

30. Other cases are discussed in the next section of these reasons.

Consideration

31. Having regard to the competing contentions of the parties as set out in the submissions above, it is convenient to resolve the contest between them by posing and answering the following questions.

Q1: Is there jurisdiction for the Court in this matter to make a costs Order under s.48(2) of the ACAT Act when (i) the original Development Application, and the reviewable decision were both made under the 2007 Planning Act, (ii) the planning legislation had been amended in 2024, and (iii) s.48(2)(d) of the ACAT Act now only referred to the 2023 Planning Act? Answer: Yes.

32. The reasons for this affirmative answer follow. As well, the Tribunal prefers and accepts the submissions of the Respondent and the Third Party to those of the Applicant on the central issue of “costs” in the current proceeding.

33. First, in my view, immediately upon the Respondent making a reviewable decision on 1 November 2024, both the Applicant and the Third Party had, at least, an inchoate (if not statutory) right to seek to have that decision reviewed. That right was actually exercised by the Applicant on 2 December 2024. Had it been exercised prior to 27 November, the jurisdictional objection now raised by the Applicant would not formally, or in any other respect, arise. This is one of a number of “reminders” of the importance of “time”, as well as a degree of serendipity that also comes into play.

34. Secondly, there is significant case law at the highest level regarding the operation of “interpretation Acts” in relation to the repeal of legislation but which does not affect “any right, privilege, obligation or liability acquired, accrued or incurred

5 Latoudis v Casey (1990) 170 CLR 534. under the affected Act or part.” Section 84 of the Legislation Act is such legislation. Its terms are set out above. For convenience, I record again subsections (1)(b) and (c) of this Act, which provide as follows (emphasis 6 added):

(1) The repeal or amendment of a law does not— (a) … (b) affect the previous operation of the law or anything done, begun or suffered under the law; or (c) affect an existing right, privilege or liability acquired, accrued or incurred under the law.

35. It is sufficient for current purposes to note two decisions. First, in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands 7 (Consolidation) Act and the Western Lands Act, Hope JA said:

… a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a nondiscretionary decision of an official or a Court, provided that the statutory machinery for obtaining that decision has been set in train before the repeal or amendment. 8

36. Even more directly, in Esber v Commonwealth, the High Court stated:

… the [Acts Interpretation Act 1901, now s.7] protects anything that may truly be described as a right, although that right might fairly be called inchoate or contingent.

37. Thirdly, there are other even more recent decisions in NSW and Victoria that say specifically that a right to pursue an appeal or review mechanism was preserved, on the basis that it had accrued or been acquired, notwithstanding that the underlying decision had not yet been made, or the appeal or review had not been 9 commenced when the legislative change took effect. An Application that is

6 The Respondent and the Third-Party accent, or rely in particular upon, sub-par.(b) of this Section. 7 (1988) 14 NSWLR 685 at 696 8 Esber v Commonwealth (1992) 174 CLR 430 at [21] 9 Among other decisions to this effect, see Douglas v Harness Racing Victoria [2021] VSCA 128, and the comments by Bathurst CJ in Re Richards Contracting Co Management Pty ltd (2021) 104 NSWLR 385 at [80]-[109]. These and other authorities are collected and discussed by Professor Pearce in the nd extract from his Interpretation Acts in Australia 2 Edition 2023 that was helpfully provided by the Applicant’s learned partner, Mr Vermeesch. Curiously, while Mr Vermeesch took the Tribunal to certain parts of this extract from the Pearce text during the supplementary hearing regarding costs, the sections of it that contain the authorities referred to in these reasons above (e.g. Esber, Richards etc) were not referred to by anyone. consequent upon a Review Application must equally be protected in the light of these authorities.

38. In my view, it follows from the above discussion that, pursuant to s.84(1)(c) of the Legislation Act, the authorities just mentioned confirm the preservation of the accrued or inchoate rights of the parties generally under the 2007 Planning Act in the current matter. These accrued or inchoate rights include to appeal or seek review, and any consequential Application that flows from it, such as an Application for costs arising from the original reviewable decision of the Planning Authority under the 2007 Planning Act on 1 November 2024, which in turn led to the Review Application by the Applicant, filed on 2 December 2024.

39. In my view, section 84(1)(c) is an even more direct basis or foundation for the jurisdiction of the Tribunal to be exercised in this matter in relation to costs. The reasons of the Tribunal are, as earlier indicated, congruent with the Tribunal earlier accepting the submissions of the Respondent and the Third Party, including the authorities there referred to. As I have already noted, it will be recalled that those submissions focussed primarily upon s.84(1)(b) of the Legislation Act.

40. I turn to question 2:

Q2: In the exercise of the Tribunal’s discretion, and in all of the circumstances here, should there be a costs Order in the Respondent’s and Third Party’s favour, and if so, why? Answer: Yes.

41. Although set out earlier in these reasons, I should highlight here certain terms of s.32 of the ACAT Act as follows. Section 32(1)(b) refers to Applications (or parts thereof) that are “lacking in substance”, and in a “Note” to subsection (2), there is a reference to section 46(d) regarding costs. It is unnecessary to refer in any detail to other parts of section 32 that refer to frivolous or vexatious proceedings and similar well-known categories.

42. To a significant degree, the reasons why there should be costs Orders in favour of the Respondent and the Third Party were set out in the reasons of the Tribunal in its principal decision. Summarised, they were relevantly as follows.

43. At [2] of the principal reasons, the Tribunal stated (emphasis added): nd On 2 December 2024, the Applicant, Ms Fry, filed an Application with this Tribunal to review the conditional approval of Mr Boyle’s DA. The only relief sought was that “the development Application be set aside.” Formally, there was no relief sought in relation to the reasons upon which the Authority made its decision. Yet, it is those reasons and the Authority’s decision upon it that is the focus of the Applicant. Again, I note that her Review Application formally seeks no relief in relation to the reasons, but only that “the development Application be set aside.”

44. At [4], the Tribunal recorded that (emphasis added): th By letter dated 6 February 2025, the Authority advised Mr Hawke, of Habitat Drafting, on behalf of Mr Boyle, that it had accepted the surrender st of the approval that issued on 1 November 2024. The Authority further advised in this letter that the conditional approval “has ended and can no longer be relied upon.” The Authority referred to s.211(2)(d) of the Planning Act 2023 (ACT) (“the Act”) regarding the ending of approvals by “surrender.”

45. At [7] and [8] of the principal decision, the Tribunal noted that the experienced lawyer/partner of the Applicant accepted that, although the “surrender” of the Development Application must and would be accepted, the reasons in support of it might or could support some later Application. He also accepted that any future Application must be speculative, however remote the possibility of it.

46. Paragraph 8 recorded in particular the letter from the Respondent Authority, dated 12 February 2025, which invited the Applicant to discontinue the Review Application. The invitation was obviously not accepted.

47. Summarily, and otherwise referring the parties to the principal reasons in full, I note the following from those reasons:

(a) Once the Respondent Authority accepted the surrender of the Development Application, there was no legal or factual issue in dispute between the parties. More formally, there was no longer any justiciable issue between them; (b) The objects and principles from the ACAT Act regarding efficiency, resources and justice, and likewise the well-known principles from AON v ANU (to refer to this well-known case summarily), including the impact upon other litigants, are crucial and well-known touchstones; (c) In the light of comments by Lord Halsbury in Jones v Stone (like AON v ANU, cited in the principal decision), it was disproportionate for the Review Application to proceed because what it could possibly achieve had already been achieved by virtue of the earlier surrender accepted by the Authority. By virtue of the surrender of the DA to the Authority, the Applicant had precisely what she had sought in her Review Application. She sought nothing else in it. Yet she still pressed on for what can, and was stated in the principal reasons as, a speculative, non-justiciable end; and (d) As noted in different ways in the principal reasons, and in these reasons also, it is of some significance that, in her Review Application, the Applicant never sought any relief in relation to the “reasons” of the Authority.

48. Finally, I note the oral submission by the lawyer for the Third Party during the supplementary hearing. She submitted that the Applicant was supported throughout, and the matter conducted on her behalf, by her partner, who is a long-time and highly experienced lawyer with significant experience in litigation. As such, and in the light of (i) the surrender accepted by the Authority, (ii) the notification by letter of 6 February 2025 that the “approval has ended and can no longer be relied upon”, and (iii) the formal invitation by the Authority to the Applicant to withdraw the Review Application, the Applicant and particularly her partner, well knew, or ought to have known, the futility of the Review Application proceeding to a hearing. I accept these submissions from the Third Party.

Disposition

49. A summary of findings by the Tribunal in relation to the costs Applications are as follows.

50. For the principal reasons delivered on 28 February, and those summarised and highlighted here, there should be an Order for costs in favour of the Respondent and the Third Party. Upon the surrender being accepted, the Review Application became otiose, and for the purposes of s.32(1)(b) of the ACAT Act, in my view, it was relevantly “lacking in substance.” In my view, it could be argued, but it was not, that the course pursued by the Applicant after the surrender of the development Application and the letter from the Authority inviting the Application to be to be withdrawn, bordered on abuse of process under s.32(1)(c), especially in the light of the High Court’s comments in AON v ANU.

51. Pressing on with that Application required everyone to undertake preparation for the hearing and to attend at it. It subsequently led to further labour for everyone regarding the costs Application. All of this would have been unnecessary had the invitation to discontinue been accepted. All of this would have been unnecessary if the Applicant had properly considered (i) the inutility and/or unreasonableness, and/or imprudence of the Review Application proceeding because of the surrender of the development Application, (ii) the legal reality that the surrendered Development Application could no longer be relied upon, and (iii) any future Development Application would require due consideration by the Authority in accordance with its statutory requirements and in the light of the circumstances then prevailing, not as they were in 2024, and in relation to which the Applicant would have, if she wished, another opportunity to challenge it.

52. It remains only to determine what, according to section 48(3) of the ACAT Act, are “reasonable costs” that should be awarded. In my view, to speak generally, the costs sought by the Respondent and the Third Party are more than reasonable.

53. The Respondent initially sought costs of $1,496 in relation to the hearings listed on 18 and 19 February 2025. An additional sum was sought arising from the supplementary hearing. The total sum sought by the Respondent was $2,180. In my view, the Applicant should pay the Respondent the sum sought by them of $2,180, which otherwise meets the general description under the ACAT Act of “reasonable costs.”

54. Regarding the Third Party, who retained a commercial firm for the litigation once he was joined to the proceeding, unsurprisingly, his costs were significantly more than those incurred by the Respondent, which had the Government Solicitor acting for it. Indeed, given the very significant discount stated to be accepted by the Third Party (from $15,500 to accepting $5,500), in my view, those costs are very reasonable. In all of the circumstances, I consider that a sum of $5,500 to be appropriate to be paid by the Applicant to the Third Party in relation to costs. I note the standard or usual understanding that party/party costs commonly amount to approximately 50/60% of the total costs actually incurred by a party. Here, the Third Party has indicated that he will accept a sum that is approximately one-third of the actual costs, thereby giving a significant “discount” regarding costs. A reasonable sum to be paid to the Third Party by the Applicant is $5,500.

55. Both sums regarding costs are to be paid within 30 days.

Orders

56. The Tribunal orders that:

(a) The applicant is to pay the respondent a sum of $2,180 within 30 days of this decision. (b) The applicant is to pay the party joined a sum of $5,500 in relation to costs within 30 days of this decision.

……………………………….. Senior Member Dr W J Neville

Date(s) of hearing: 3 April 2025 Applicant: Mr P Vermeesch, authorised representative Respondent: Ms S Lane & Ms L White, authorised representatives