[2011] TASSC 46

HEARING DATE: Written Submissions: 2 - 25 August 2011

Administrative Law - Administrative tribunals - Statutory appeals from administrative tribunals to courts - Errors of law established - Remitter for reconsideration - Circumstances in which it is appropriate to remit matter to a differently constituted tribunal - Whether question of constitution should be left to tribunal's administrative arrangements.

R v Resource Planning & Development Commission; ex parte Dorney (No 3) [2003] TASSC 84; (2003) 12 Tas R 147; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1; Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497, applied.

Seablest Pty Ltd v Smith [1997] TASSC 36; (1997) 6 Tas R 350, considered.

Appeal and New Trial - Appeal - Practice and Procedure - Tasmania - Appeal costs fund - Power to grant indemnity certificate - Other matters - Indemnity certificate not to be granted "in favour of the Crown" - Whether statutory authority constitutes the Crown.

Appeal Costs Fund Act 1968 (Tas), s19(2).

R v Director of Corrective Services; ex parte Forrest [2001] TASSC 21; (2001) 10 Tas R 141; Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34; (1979) 145 CLR 330, applied.

Procedure - Costs - General rule - costs follow the event - Costs of issues - Exercise of discretion - Undesirable to award costs on separate issues unless issue or group of issues clearly dominant or separable.

Burnie Port Corporation Pty Ltd v Bank of Western Australia Ltd (No 3) [2003] TASSC 132; (2003) 12 Tas R 325, applied.

First respondent: (Submitted to the Court's jurisdiction)

Second respondent: S R Morris QC and D R Armstrong

First respondent: Director of Public Prosecutions

Third and Fourth Respondents: Director of Public Prosecutions

Judgment Number: [2011] TASSC 46

MADELINE KIDD v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL, CITTA PROPERTY GROUP PTY LTD, TASMANIAN HERITAGE COUNCIL, SULLIVANS COVE WATERFRONT AUTHORITY (NO 2)

1 On 29 July 2011, I handed down judgment in this matter: Kidd v Resource Management and Planning Appeal Tribunal [2011] TASSC 38. I held that the Resource Management and Planning Appeal Tribunal ("the Tribunal") had made errors of law in the determination of what were described as heritage appeals and planning appeals, but which were heard together. The appeals to the Tribunal concerned a large scale redevelopment of an area in Sullivans Cove, Hobart, the development being generally known as Parliament Square. There were particular issues surrounding the proposed demolition of two buildings. They were 2 - 4 Salamanca Place which is a building listed on the register maintained under the Historic Cultural Heritage Act 1995 ("the Heritage Act"), and also listed as a place of cultural heritage significance in the relevant part of the applicable planning scheme - the Sullivans Cove Planning Scheme 1997. The other building is 10 Murray Street, which was not listed under the Heritage Act, but was similarly listed in the planning scheme.

2 In the heritage appeals, in order to grant a permit for the demolition of 2 - 4 Salamanca Place, as works likely to affect its historic cultural heritage significance, the Tribunal was required to be satisfied that there was no prudent and feasible alternative to the carrying out of the works. I found that the Tribunal wrongly limited the scope of the inquiry by imposing the constraint of what was sought to be achieved by the proposal. The other error of law which I found the Tribunal to have made related to the planning appeals, and was an oversight in failing to consider the application of cl 28.5(b) of the planning scheme as it applied to 2 - 4 Salamanca Place. Clause 28.5 is a provision which governs the demolition of buildings which are listed as having cultural significance. Clause 28.5(b) enables the refusal of a permit if the authority forms the opinion that the building contributes to the cultural heritage or urban character of a defined area, and has a capacity for continued beneficial use.

3 In my reasons, I said that orders should be made setting aside the decisions of the Tribunal to affirm the decision of the Tasmanian Heritage Council granting a permit under s39 of the Heritage Act, and of the Sullivans Cove Waterfront Authority granting a permit for the development. I said there should be an order remitting the matters to the Tribunal. I noted that counsel for the appellant had asked that in the event of any part of the appeal succeeding, I leave open the question of remitter to the same Tribunal or to a differently constituted one. I said I would hear counsel as to the appropriate consequential orders in all respects. I have received written submissions from all parties who participated in the hearing, on the remitter question, and also on the question of costs. These are my rulings and the reasons for making them.

4 Section 25 of the Resource Management and Planning Appeal Tribunal Act 1993 ("the Appeal Tribunal Act") relevantly provides as follows:

"25 Appeals to Supreme Court from decisions of Appeal Tribunal

...

(5) The Supreme Court must hear and determine an appeal duly made under this section, and may make such orders as it considers appropriate.

(6) Without limiting subsection (5), the orders that may be made by the Supreme Court on an appeal include -

(a) an order affirming a decision of the Appeal Tribunal; and

(b) an order setting aside a decision of the Appeal Tribunal and -

(i) making a decision in substitution for the decision set aside; or

(ii) remitting the matter for reconsideration in accordance with any directions of the Supreme Court."

5 Section 25(5) gives the Court a wide power to make such orders as it considers appropriate. Section 25(6)(b)(ii) does not regulate or confine the power to remit a matter for reconsideration, and enables the Court to make any directions concerning the reconsideration. There is no dispute that the combination of these powers enables the Court to order that the matter be remitted to the same, or to a differently constituted, Tribunal. The overriding power is that contained in s25(5). The power to make such orders as the Court considers appropriate clearly encompasses the constitution of the Tribunal to which a matter is remitted: Seablest Pty Ltd v Smith [1997] TASSC 36; (1997) 6 Tas R 350. If anything further is required, I note the decision in R v Resource Planning & Development Commission; ex parte Dorney (No 3) [2003] TASSC 84; (2003) 12 Tas R 147. That case concerned s27(1)(b) of the Judicial Review Act 2000 which enabled the Court to make an order referring the matter to the person who made the decision for further consideration, subject to such directions as the Court determined. Blow J held that this power was wide enough to allow the Court, when appropriate, to direct that the decision-making body be differently constituted, or that certain members or delegates not participate.

6 Before leaving the Appeal Tribunal Act, I should note those provisions which deal with the organisation of the Tribunal and its business. As it will appear, they have some relevance. The Act provides that the chairperson is a legal practitioner of not less than five years' standing. Section 9(1) enables the chairperson to give directions as to the arrangement of the business of the Appeal Tribunal, and as to the members who are to constitute the Tribunal for the purposes of the particular proceedings. Section 9(2) empowers the chairperson to replace any member who ceases to be a member or becomes unavailable. Section 9(3) sets out a number of matters to which a chairperson must have regard in selecting those members who are to constitute the Tribunal in any particular case. Section 10 provides that the Appeal Tribunal is to be constituted for the purposes of the hearing and determination of an appeal by the chairperson alone, or a member other than the chairperson, or the chairperson and not more than four other members. In this case the chairperson and two members heard and determined the appeals.

7 In Seablest Pty Ltd v Smith (above), Underwood J (as he then was), at 359 - 360, noted that the Court could order a rehearing of the appeal in the exercise of the power conferred by the Appeal Tribunal Act, s25(5). His Honour drew the distinction between a rehearing and a "reconsideration" as the latter term is more usually understood; that is, in the sense of considering a decision a second time with a view to changing or amending it. He went on to point out that, "reconsideration" in s25(6), obviously has a different meaning, "for the power to remit for reconsideration only arises if the court sets aside the decision of the Tribunal". His Honour continued: "It might be thought that in the ordinary case ... the appropriate order on setting aside a decision is the rehearing of the appeal. Indeed, it might be thought that as enacted by the Act, s25(6)(b)(ii), the power to remit should seldom be exercised without the specific accompanying directions."

8 In that case, the decision was set aside, and Underwood J said that reconsideration could "mean nothing less than a rehearing and determination of the appeal from the determination". I take the view that, although it may be that the "matter" which is to be remitted is the appeal to the Tribunal, the wording of the Appeal Tribunal Act, s26(b)(ii), enables the Court to confine the extent of the reconsideration. The Court is able to identify discrete matters for reconsideration, depending upon the nature of the proceedings before the Tribunal, the nature of the decision it made and the nature of the error. However, care needs to be exercised in defining and framing the "matter" and in making any accompanying directions: see generally Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 per Basten JA, (Beazley and Young JJA agreeing) at 10 - 13 [29] - [40].

9 The governing principle is that the power to remit to a different judicial officer or differently constituted tribunal "is to be used sparingly and only when it appears ... that it is appropriate in the interests of justice": Seltsam Pty Ltd v Gahleb [2005] NSWCA 208, per Mason P, at [12]; and Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 at 73 - 78 [71]-[84]. Otherwise, it is left to the proper administrative processes of the lower court or tribunal - and subject to any views held by the officers or members - to determine whether the same person or tribunal deals with the rehearing or reconsideration. I think it is fair to say that the actual outcome across a range of cases might suggest a presumption in favour of a differently constituted court or tribunal, but it is clear that this is not so as a matter of principle.

10 Young JA in Walker Corporation (above) at 27 [119] put the matter this way: "The key question is whether there will be a perception of a fair trial if the case is remitted to the judicial officer who previously heard it." His Honour then referred to something said by Kirby J (in dissent as to the outcome) in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 556. Kirby J said that a direction that a matter be heard before a differently constituted tribunal "is not uncommon in the exercise of appellate or judicial review jurisdiction where a conclusion is reached that a rehearing by the same decision-maker would be unlawful (where the decision is set aside for reasons of actual or apparent bias) or otherwise undesirable (in the interests of justice)." [Original emphasis]

11 This is consistent with the approach of Blow J in R v Resource Planning & Development Commission; ex parte Dorney (No 3) (above). His Honour held that a reasonable apprehension of bias meant that the matter in that case should go to a differently constituted tribunal. (See also Seablest Pty Ltd v Smith (above) at 361.) Blow J also took the view that circumstances falling short of an apprehension of bias might warrant the same course. His Honour referred to the judgment of Davies and Foster JJ in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, at 42 - 43. His Honour set out parts of a passage, the whole of which I would see to be relevant. I will set out the passage and italicise those parts which were quoted by Blow J:

"If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member's views have been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for rehearing, the President of that Tribunal ordinarily allocates to the rehearing a different member of the Tribunal. There are, of course, cases where it is convenient for the Tribunal as previously constituted to deal with the matter. And occasionally the Court itself expresses such a view, so as to make it clear that it would not be improper for the Tribunal as previously constituted to consider the matter again. See for example Versatile Carpets Ply Ltd v Collector of Customs (unreported, Federal Court of Australia, Sweeney, Woodward and Davies JJ, 21 February 1985) in which the Court remarked, ' ... subject to questions to availability of members, it would be helpful if the matter were heard by the Tribunal as it has so far been constituted'.

...

His Honour concluded that as 'the Tribunal's consideration of the matter was extensive, far-reaching and lengthy' and as 'strong views on the applicant's compliance with the requisite criteria' had been expressed, it would better achieve the object of having the matter heard and decided again that the Tribunal should be differently constituted. Such a finding imports no criticism whatever of the member who originally constituted the Tribunal but simply recognises that, when decisions in judicial and administrative proceedings are set aside in toto and the matter remitted to be heard and decided again, justice is in general better seen to be done if the court or the Tribunal is reconstituted for the purposes of the rehearing."

12 In Dorney, relying on those comments, Blow J said that if he were wrong about a reasonable apprehension of a lack of impartiality, it would be nonetheless appropriate for reasons which he outlined, to take the same course and to remit the matter to a differently constituted tribunal.

13 More recently, the question of remitter in relation to decisions of the Commonwealth Administrative Appeals Tribunal ("the AAT") was considered in Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497. The provisions which govern orders which can be made on an appeal succeeding from the AAT amount to the equivalent of s25(5) of the Appeal Tribunal Act, and are not relevantly dissimilar to s25(6) of that Act.

"30 The rehearing of matters remitted to the Tribunal is to be distinguished from the rehearing of matters remitted by an appellate court to a trial court. In the former case an appeal can be allowed only on a question of law. Most appeals in the latter category will be rehearings where all issues are open, including findings of fact. Reversal on a question of law will rarely justify a rehearing by a Tribunal differently constituted.

31 A rehearing before a Tribunal differently constituted will inevitably be more expensive, both to the parties and to the Commonwealth. Except in a clear case the interests of justice and the statutory requirements will generally best be served by a hearing before the Tribunal constituted as it was originally.

32 Practical matters such as the workload of the Tribunal and its members, as well as other similar matters, will also be relevant to how the Tribunal should be constituted for a matter remitted for further hearing.

33 For all these reasons it seems to me that this Court should leave to the President of the Tribunal the question of how the Tribunal should be constituted on a rehearing. Only the President will be aware of all the factors which must be taken into account. Observations in decisions of the Court which may suggest a different view are generally obiter, made in cases relating to different tribunals, or made prior to the amendments to the Tribunal Act in 2005 (or based on remarks in cases so decided).

34 It should be left to the President of the Tribunal, at a time when all the facts and relevant matters set out above can be taken into account, to determine how the Tribunal should be constituted on remittal."

15 At 515 [89], Tracey and Flick JJ noted that "it has been said that the 'usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed'". Their Honours gave references to a number of cases. At 515 [90], after referring to the passage from the Northern NSW FM case which I have set out above, said: "It may thus be appropriate for the Tribunal to be differently constituted where, for example, the decision of the Tribunal has been set aside by reason of an apprehension of bias on the part of a Tribunal member or where findings of fact have been made by the Tribunal which may need to be revisited." Their Honours continued at 516 - 517 (omitting references):

"91 On other occasions, there may be circumstances where there is no reason why the Tribunal whose decision is under appeal should be constituted in any different manner when an appeal is allowed and the matter remitted to it for further consideration. Indeed, in some circumstances it may well be convenient for the Tribunal to remain as previously constituted to avoid unnecessary time and expense being incurred. ...

92 On yet other occasions, the Tribunal as originally constituted may not be able to hear a matter remitted to it by reason of (for example) the expiration of the appointment of a Tribunal member ...

93 In the absence of an express order, s 20B of the Administrative Appeals Tribunal Act provides that it is the President of the Tribunal who 'may give directions as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding'.

94 In many cases it may well be the appropriate course to simply allow an appeal and remit the matter to the Tribunal and to leave it to the President to give such directions as he considers appropriate pursuant to s 20B. ... The manner in which [the power to make orders as to the future constitution of the Tribunal] should be exercised, however, is to be resolved by reference to the facts and circumstances of each individual appeal. The power, it is respectfully considered, should not be more confined than that. The exercise of the power should not be approached with any inclination that it should 'usually' be exercised in one manner rather than another." [Original italics]

16 In Walker Corporation (above) Young JA at 28 [121] set out a number of "guidelines", by reference to a number of authorities. Those guidelines include that:

•

the power to direct a remittal to a fresh person is to be exercised sparingly;

•

a ground for remitting to a differently constituted court or tribunal may well arise where there already have been strong findings about the credibility of a party;

•

if there has been stringent criticism of the judge or tribunal member in the appeal court, the appearance of justice might recommend that the matter be remitted to a fresh mind;

•

if there is a reasonable likelihood that a judicial officer or tribunal member will be perceived to have pre-judged the issue to be remitted to him or her, the matter should be remitted to a fresh mind;

•

if the appeal hearing throws up a reasonable suggestion of bias in the original decision-maker, remittal to a different person will be ordered.

17 There is one point arising from the discussion in Comcare v Broadhurst (above) which I would highlight. All of the three judges took the view that unless there was good reason to order a matter be dealt with by a differently constituted tribunal, the appropriate course was to remit the matter and leave it up to the President of the AAT (in that case), to give such directions as are considered appropriate pursuant to the statutory powers. As Tracey and Flick JJ pointed out, it may be that although it is not necessary that a matter be remitted to a differently constituted tribunal, it may not be practicable or possible for that tribunal to sit. It was this consideration which prompted Evans J in R v Resource Management and Planning Appeal Tribunal; ex parte North West Rendering Pty Ltd [2005] TASSC 8, to make no order concerning the constitution of the Tribunal upon a remitter, notwithstanding a firm view that the same Tribunal could properly deal with the matter.

18 Moreover, again as Tracey and Flick JJ pointed out in Comcare v Broadhurst, although a court may not see it necessary to have a tribunal differently constituted, a member, or all members, may feel that disqualification from further participation is appropriate. Their Honours referred to Re Toohey and Tax Agents' Board [2009] AATA 142. In that case, a Deputy President of the AAT disqualified herself notwithstanding that the order of a Federal Court judge was that the matter be remitted to a differently constituted Tribunal, or if the parties agreed, to the Deputy President to determine the application in accordance with the law as settled by the appeal. This was a case where the Tribunal had heard all of the evidence but failed to make a proper evaluation in accordance with the correct legal test. On the remitter, Deputy President Forgie said that notwithstanding the consent of the parties, she felt unable to proceed further because of the findings of fact which had been made, and of what was required to be done on the rehearing. She also felt that fair-minded people reading her reasons might reasonably apprehend that she had pre-judged the case.

19 The appellant submits that on the basis of the test of apprehension of bias, the matter should go to a differently constituted Tribunal. She submits that it is clear to any fair-minded reasonable observer that the Tribunal members formed strong views as to the merits of the demolition of 2 - 4 Salamanca Place in the context of the whole redevelopment proposal. In doing so, as I found in my first reasons, the Tribunal applied a wrong legal test in the appeal under the Heritage Act, and overlooked a part of the Planning Scheme in the exercise of the discretion under the Land Use Planning and Approvals Act 1993. By way of example, counsel has referred to a number of paragraphs in the Tribunal's reasons which are said to employ "quite pejorative language". For example, the redevelopment will mean that "A largely decrepit and under-utilised part of Hobart will be revitalised", and "the site proposed for redevelopment is decrepit." See my first reasons, [2011] TASSC 38 at [27] and [58]-[59].

20 It is said that the Tribunal found in favour of evidence adduced by Citta as to why it was considered impracticable to adaptively reuse 2 - 4 Salamanca Place, and that in forming these views evidence to the contrary produced on behalf of the appellant was not referred to. In short, it is said that the Tribunal has a clearly formed and publicly expressed view to the extent that a fair-minded observer might reasonably apprehend that it might not bring an impartial and unprejudiced mind to the resolution of the question to be decided.

21 Citta submits that in all of the circumstances, the matters should go back to the Tribunal as it was constituted. The proceedings before the Tribunal took some seven days, during which it heard extensive evidence. It submits that there is no reason to believe that the Tribunal cannot fairly apply the correct test in the heritage appeals, and to fairly decide the point that was overlooked in the planning appeals, on the basis of that evidence. With the chair being a legal practitioner, and with experienced members of the Tribunal, it would be able to put aside the approach in the heritage appeals which was found to be incorrect, and to properly consider the issue which it overlooked in the planning appeals. The inconvenience of remitter to a differently constituted tribunal is substantial and obvious. There would need to be a fresh hearing, again likely to occupy the same period of time. This is not necessary in order to remedy the errors that have been made.

22 The Heritage Council makes the same points. Relying on the guidelines put forward by Young JA in Walker Corporation (above), it is submitted that there has been no stringent criticism of the Tribunal, nor any criticism of it at all, other than my determinations that it made errors of law.

23 One matter which was raised by the appellant and said to be relevant is a matter which did not arise in the present appeal proceedings. I have now been told that there is a subsequent development application which Citta has made, and for which approval has been granted by the Heritage Council and the Sullivans Cove Waterfront Authority. This development is said to be Citta's preferred option. Appeals have been lodged, in identical terms, to those heard by the Tribunal and giving rise to this appeal. Those appeals have been adjourned by the Tribunal pending the appeal which I have resolved.

24 The appellant's suggestion is that the hearing of those appeals to the Tribunal will need to be heard by a differently constituted one to that which dealt with the first set of appeals. It is said that "As a matter of convenience all appeals could then be heard by a differently constituted Tribunal. Or, assuming that the second application is the preferred one, the proponent may simply press that one at a new appeal with a differently constituted Tribunal now bound by this Court's determination as to the relevant legal principles. Each application is, for present purposes, substantially identical". However, I am not sure that I understand the significance of all of this, given that it is the appellant's position that if the current appeals to the Tribunal fail, she will not pursue the appeals in respect of the alternative proposal.

25 Speaking generally, there are two aspects of the assessment of whether an apprehension reasonably exists that the same tribunal might not bring an impartial and unprejudiced mind to the issue to be determined, or whether other notions of unfairness compel a remitter to a different tribunal. Leaving aside the case of a decision being set aside on the basis of actual or apparent bias, the first aspect is what the tribunal has done and said; the second is what it needs to do.

26 In this case, the Tribunal heard and evaluated evidence as to whether there was no prudent and feasible alternative to the demolition of 2 - 4 Salamanca Place, but did so confining its considerations to the context of the proposal. As earlier noted, I found that the Tribunal was wrong to limit the scope of the inquiry so that it was constrained by what was sought to be achieved by the proposal. Evidence was given as to how the proposal, in broad terms, could be achieved without the demolition of the building. Consideration of this evidence seems to have been confined to an evaluative process. There were no comments made as to the integrity or credibility of the witnesses. There was no allegation in this appeal of any error of law in the fact-finding process. Further, although some views were expressed about the desirability of the broad proposal, I have held that the merits of an overall proposal is a factor which must be taken into account. It is important, I think, that no specific adverse findings or comments were made about the building itself.

27 The true position is that the Tribunal (in my view) misconstrued the nature of the test to be applied under s41 of the Heritage Act. What remains to be done is a further evaluation of the same evidence, and the application of the correct test. In light of the test which ought to be applied, in contrast to the one which was, the basic factual matters will remain the same, but what emphasis may be put on certain things may differ. What the Tribunal did was to make a value judgment on the whole of the evidence which it heard. What is left for the Tribunal to do is to correctly apply the provisions of the Heritage Act, s41, to the evidence which it has.

28 I cannot see why the same Tribunal would not be capable of a re-evaluation of the evidence and an application of the proper test, and accordingly I am not able to see that any real issue of apprehended bias or other unfairness arises. If I were to order the matter go to a differently constituted Tribunal, it would mean a lengthy and expensive rehearing with, no doubt, some delay before it could begin. That would be undesirable. As I have demonstrated is open, the Tribunal may feel that it is unable to bring an impartial and unprejudiced mind to the issue, or from their perspective rather than mine, there would be an apprehension of bias. It also may be that the same members are not available. For those reasons, I conclude that the proper order is simply one remitting the matter to the Tribunal, leaving it up to the chairperson to make any directions he sees to be appropriate under ss9 and 10 of the Appeal Tribunal Act, and leaving the matter in the Tribunal's hands if, from their own perspective, they feel unable to deal with the proceedings.

29 For essentially the same reasons, I take the same view in relation to the planning appeals. I think the arguments in favour of simply remitting the matter to the Tribunal leaving it to the discretion of the chairperson as to matters of procedure, and to the Tribunal as to whether it feels able to proceed, have even stronger force in this instance. As I have noted, the error of law which I found the Tribunal to have made, was an oversight in failing to consider the application of cl 28.5(b) of the planning scheme as it applied to 2 - 4 Salamanca Place. Although other findings of fact and factual consideration might have some bearing on whether the demolition could be refused under that sub-clause, there are certain things contained within it which need to be addressed. In short, the Tribunal failed to have regard to the sub-clause and to deal with it, and that is what it is now required to do. It simply has to deal with the issue of cl 28.5(b) of the planning scheme.

30 I do not see that either reasonable apprehension of bias or general notions of apparent unfairness require an order that these matters be heard and decided again by a differently constituted Tribunal. The existence of the outstanding appeals to the Tribunal concerning an alternative proposal, operates in favour of leaving it to the chairperson to decide the make-up of the Tribunal which is to hear these matters. That provides the greatest flexibility to deal with the various possibilities. It follows that although my view is that the matters need not go to a differently constituted Tribunal, I will make no order to that effect.

31 For the reasons which I have given, I will make the following orders:

(a) The decisions of the Tribunal affirming the decisions of the Heritage Council granting a permit under s39 of the Historic Cultural Heritage Act, and of the Sullivans Cove Waterfront Authority granting a permit for the development be set aside.

(b) The matter of the grant of a permit under s39 of the Historic Cultural Heritage Act in respect of 2 - 4 Salamanca Place be remitted to the Tribunal for reconsideration in accordance with these reasons.

(c) The matter of the grant of a permit for the development under the Land Use Planning and Approvals Act, be remitted to the Tribunal for reconsideration.

(d) It is directed that in the event that the matter referred to in (c) is reheard by the same Tribunal, reconsideration of it may be limited to the issue under cl 28.5(b) of the Sullivans Cove Planning Scheme 1997 as it relates to 2 - 4 Salamanca Place.

32 The parties who participated in the hearing of the appeal apart from the appellant, were Citta and the Heritage Council. I am dealing with what costs orders are to be made in the appeal to the Court under the Appeal Tribunal Act, and also in relation to an application made by the appellant under the Judicial Review Act. That application was filed on the day before the hearing of the appeal was due to start. I was told that it was filed because of an argument foreshadowed by Citta, that the appellant had no standing to bring the appeal. It was said that different considerations about standing were involved in the application, as distinct from the appeal. When the hearing of the appeal got underway there was some minor skirmishing, but at a point not far into the hearing, counsel for Citta abandoned the argument, and I adjourned the Judicial Review Act application sine die. Something will need to be done about it.

33 As to the appeal, the appellant submits that costs should follow the event. There were originally seven grounds of appeal. One was abandoned before the hearing commenced, and a further one was abandoned on the morning of the second day, but some time had been devoted to it. That was a significant argument concerning the application of certain provisions of the planning scheme. The appellant failed on three of the remaining grounds, although the appellant suggests that the argument as to one ground "was almost sufficiently persuasive to be successful". It is put that most of the time in the hearing was taken up with the first ground of appeal, that relating to the test under s41 of the Heritage Act.

34 Citta submits that it cannot be said that the appellant was substantially successful, and that in all of the circumstances, it is appropriate that there be no order in either proceeding. On behalf of the Heritage Council, it is pointed out that it confined itself to the argument about the first ground, and that while the appellant was successful on this ground, there was also substantial opposition put by Citta which raised a number of issues beyond that which the Council put.

35 Ordinarily of course, costs follow the event. Where there is only success on some issues, the general approach is to award costs without attempting to differentiate between successful and unsuccessful issues unless a particular issue is clearly dominant or separable: Burnie Port Corporation Pty Ltd v Bank of Western Australia Ltd (No 3) [2003] TASSC 132; (2003) 12 Tas R 325 at [26]- [27] and the cases cited; Sanders v Snell (No 2) (2000) 174 ALR 53 per Kirby J at 57 [14]. In the circumstances of a given case, partial success may mean that a party must bear the expense of litigating that portion on which the party has failed: see the principles referred to by Blow J in State of Tasmania v Effingham (No 2) [2006] TASSC 32 at [22]- [24]. Multiple and complicated taxations should be avoided where possible.

36 I take the view that the appellant has sufficiently succeeded in the appeal to justify an award of costs in her favour, but that the degree of success does not warrant an order simply that costs follow the event. The nature of the issues on which the appellant failed means that she will have to bear a portion of the costs. Allowance needs to be made for the issues on which the appellant did not succeed, but in the circumstances, I do not think that it is appropriate to make orders as to separate issues or groups of issues.

37 On a broad assessment, about half of the total time involved related to the first ground of appeal which succeeded. That was the heritage matter. Broadly speaking again, a little less than half of that time was occupied by the appellant. Of the total time taken up by the respondents on this issue, that can be divided on the basis of about two thirds to Citta, and one third to the Heritage Council. It would be very difficult to divide this issue of heritage matter from the other issues in the appeal, in order to give it separate treatment in terms of costs. Of the balance of the total time, a significant part was spent on the issue of standing and Citta's submissions about the correct approach to the appeal. On the planning matters, about the same time as that taken by Citta on those submissions, was spent on the ground which was abandoned during the hearing. Slightly less time was spent on one ground which failed, and each of the remaining three grounds, one of which succeeded, did not take very long to argue.

38 Looking at it a different way, the appellant totally succeeded in the heritage matter involving 2 - 4 Salamanca Place, but had partial success in the planning matter concerning that building. She failed completely as to 10 Murray Street. Taking an admittedly broad approach to the exercise, I think it fair and just that the appellant should have two thirds of her costs. As to those costs, my judgment is that there should be an apportionment of 75/25 between Citta and the Heritage Council respectively.

39 The remaining issues are whether it is the entity or the members who may be liable for an order against the Heritage Council, and whether applications made by both Citta and the Heritage Council under the Appeal Costs Fund Act 1968, should be granted. Similar issues to those which involve the Council were discussed by the Full Court in Fernando v Medical Complaints Tribunal [2007] TASSC 44; (2007) 16 Tas R 237, to which I will return. The present issues are:

•

whether any order for costs is to be made against the Heritage Council as such, or against the members personally;

•

if the latter, whether the members are immune from liability of such an order by virtue of s91 of the Heritage Act[1], or alternatively s4(1) of the Statutory Authorities (Protection from Liability of Members) Act 1993_[2]__;_

•

if an order for costs is made, in either case whether a certificate under s8 of the Appeal Costs Fund Act can and should be made.

40 A brief summary of the nature of the Heritage Council and its role in this litigation is required. By s5 of the Heritage Act the "Tasmanian Heritage Council is established". Section 5(2) makes the Heritage Council part of the State's resource management and planning system, and refers to the objectives of that system as set out in Schedule 1 to the Land Use Planning and Approvals Act. The Council is not made a body corporate, and has no power to sue or be sued in its name. Its general functions and powers are set out in s7. These include advising the Minister on matters relating to Tasmania's historic cultural heritage and measures necessary for conservation of that heritage, to work within the planning system to achieve the proper protection of Tasmania's historic cultural heritage, and to perform any other function the Minister determines. Section 15 requires it to keep the Tasmanian Heritage Register. It might be worth noting that under the terms of the Act, a decision of the Council can conceivably be made by four of the 15 members, being a majority of the quorum of seven.

41 In terms of the Council's operation, s12 establishes the "Heritage Fund", into which is to be paid money appropriated by Parliament for the purpose of administering the Act, any money received by the Council, and income derived from the investment of money standing to the credit of the Fund. By s13, the Council must apply that money for the purposes of the payment of expenses, charges and obligations incurred by it in the administration of the Act, the payment of salaries, remuneration, allowances and expenses payable under the Act, and the provision of financial or other assistance for the purposes of the Act. Oddly enough, despite the fact that the Heritage Council is not a juristic person, s14 enables the Council, with the Treasurer's approval, to accept money or property on trust, and to invest any money held by it on trust in accordance with the Trustee Act 1898, s5.

42 The Heritage Council was the original decision-maker as to the grant of a permit for works under the Heritage Act, s39. This decision was the subject of the heritage appeals to the Tribunal which, as I have noted, were heard by the Tribunal at the same time as the planning appeals brought from the decision of the Sullivans Cove Waterfront Authority to grant a development permit. Section 14 of the Appeal Tribunal Act makes "the person who made the decision appealed against", a party to an appeal. The Acts Interpretation Act, s41(1), provides that in any Act, the expression "person" includes "any body of persons, corporate or unincorporate, other than the Crown". Assuming for the moment that the Heritage Council does not constitute the Crown, s14 made the Council a party.

43 The Council appeared by counsel before the Tribunal. For the most part, it seems to have adopted a relatively neutral role in providing assistance to the Tribunal and involving itself in the debate about whether 2 - 4 Salamanca Place was listed on the Register[3]. But its counsel did cross-examine several expert witnesses about heritage issues, and made submissions as to the construction of s41 of the Heritage Act The attention of the Tribunal was drawn to relevant authorities. In the appeal to this Court, the Council was named as a respondent by the appellant. As was made clear in Fernando v Medical Complaints Tribunal (above) at 240 - 241 [6] this is not the correct procedure, although the Council had to be served with any appeal by virtue of r707(c) of the Supreme Court Rules. In any event, it appeared by counsel in this appeal and presented an argument as to the construction of s41 of the Heritage Act, along the lines of that made to the Tribunal. As is evident, its position was contrary to that advanced by the appellant, and in accordance with that argued for by Citta.

44 In his submissions as to costs, Mr Turner, for the Council, put that in an appeal to the Tribunal it was "proper for the decision-maker whose decision is the subject of the appeal, to participate in the appeal and to resist it." In that event, I should mention some issues which may arise from the operation of s14 of the Appeal Tribunal Act, and the participation of the decision-maker in the hearing of appeals against the decision as a protagonist. That was the factual scenario in Fernand (above). The "Medical Complaints Tribunal" had fully participated in all proceedings in defence of its decision. (That of course, is not the situation in this case, at least in this appeal.) The Medical Complaints Tribunal was constituted differently for separate inquiries. There were two permanent members, with other members specially appointed for each inquiry. The Court had to consider whether the Medical Complaints Tribunal, as constituted for the particular inquiry, could and should be made liable for costs. It was held that it was the individual members who made up the tribunal, who should bear the liability for the costs of the appeal to a single judge and of the Full Court appeal. The issue of immunity also arose.

45 Crawford J, as he then was, and Slicer J referred to the well-known passage from R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35 - 36, the High Court said:

"There is one final matter. [Counsel] was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal."[4]

46 The extent of the exception was commented on by Basten JA (Macfarlan JA agreeing) in Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council [2009] NSWCA 300. At [80], his Honour said:

"It is sometimes said that the Hardiman principle involves an exception in respect of submissions which are limited to the powers and procedures of the tribunal. However, that is not strictly so: the High Court in Hardiman said that the presentation of a case by a tribunal should be regarded as 'exceptional' and that where it occurs the presentation should be limited to submissions going to the powers and practices of the tribunal: at 36. The scope of possible exceptional cases was not explored, but must clearly be governed by the degree of inconsistency with the underlying principle, namely that the tribunal should not endanger its impartiality. On that basis, it is true that impartiality will be less endangered by submissions unrelated to the substance of the issues which might come back before it, and will be less endangered in circumstances where the matter is unlikely to go back before the tribunal in any event. It may also be appropriate to grant some weight to the practical consideration that, without any appearance by the tribunal, the Court may be left without the valuable assistance which might be obtained from a contravener."

47 I mention this because, in addition to the possible relevance to an issue which I have to decide, it might pay to reflect on what roles planning authorities and those whose decisions are the subject of appeal to the Tribunal ought play. Of course the Tribunal exercises original jurisdiction on an appeal and stands in the shoes of the original decision-maker. In many cases, there may not be a contradictor and it would assist the Tribunal in having all of the relevant material, the opposing arguments and any other relevant matters brought to its attention. In some cases there may be true adversaries and it may not be appropriate for the decision-maker to adopt the role of a protagonist. This is because s23(2)(c)(ii) of the Appeal Tribunal Act enables the Appeal Tribunal to remit the matter to the original decision-maker for reconsideration, and the reasons given in Murlan Consulting (above) accordingly apply. See also Capricornia Credit Union Ltd v Australian Securities and Investment Commission [2007] FCAFC 112 at [13].

48 In any event, in relation to the liability for a costs order, there is no need to consider whether the Council in the appeal to this Court went beyond a neutral role of assisting the Court, and made itself an active participant in the litigation. So much is self-evident, and Mr Turner has accepted that there is a potential liability. However, he argues that it is the Council as a body, as constituted by its members, which should bear the liability, rather than the members themselves. I think that the submission should be accepted.

49 In Fernando, it was held that it was the individual members who made up the tribunal, who should bear the liability for costs. As I have noted, the situation in that case is to be distinguished from this. In this case, the Heritage Council, as "a person" was served, and decided to participate in this appeal to advance a construction of its legislation. On one view, that action might seem to have been at least unnecessary, but it was entitled to do what it did. As it is not a body corporate, and having regard to the terms of the statute which govern the Council and its operations, the appropriate order is against the Council as a body but constituted by the individual members, a list of whom has been supplied to me. Those persons are named in the appendix to these reasons.

50 There is accordingly no need for me to consider whether the individual members have immunity, under either provision. The remaining question is whether the Heritage Council as constituted by the individual members is entitled to a certificate under the Appeal Costs Fund Act. As s19(2) of that Act provides that an indemnity certificate shall not be granted in favour of the Crown, the first aspect of this question is whether the Council constitutes the Crown. The position of the Director of a State Service agency was considered by Blow J in R v Director of Corrective Services; ex parte Forrest [2001] TASSC 21; (2001) 10 Tas R 141. At 145 - 146 [13], his Honour said:

"In the absence of any statutory provision to the contrary, the Director would no doubt be entitled to the shield of the Crown, given that he fulfils a governmental function, is generally speaking susceptible to government control of his activities, has no financial autonomy, has no assets vested in him, can have his staff appointed and removed by his superiors, and is not a corporation sole."

51 His Honour referred to a number of authorities for examples. Included in those authorities was Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34; (1979) 145 CLR 330 at 348, 354. The reference to page 348 in that case is a reference to the judgment of Stephen J, who said:

"The importance of the presence or absence of control by the executive government in ascertaining whether or not a statutory corporation possesses a particular immunity or privilege of the Crown is a consequence of the very nature of that inquiry, concerned as it is with the nexus between the corporation and the executive. If a corporation is no more than the passive instrument of the Crown, subject in a high degree to control by the executive, it is appropriate enough that its acts be viewed as those of its master and that it be itself treated as the alter ego of the Crown, enjoying accordingly those immunities and privileges with which the Crown is clothed. If, on the contrary, a statutory corporation is essentially autonomous, its acts being in no sense the outcome of directions by the executive but truly its own, there will be little reason to clothe it with any of those immunities or privileges. In saying this I do not intend to suggest the need for any examination of the actual extent to which particular actions are or are not the result of the exercise of control by the executive: it is the existence of the statutory ability to control, or its absence, that is to be looked at."

52 I have already set out the relevant sections of the Heritage Act and the functions of the Council. On that basis, and applying what I have set out from the Director of Corrective Services case and the Superannuation Fund Investment Trust case, I hold that for the purposes of the Appeal Costs Fund Act, the Heritage Council does not constitute the Crown.

53 As to the merits, there is a need to look at the legislative intention behind the Appeal Costs Fund Act, and the nature of the discretion. In Tasmanian Pulp and Forest Holdings v Woodhall Ltd [1972] Tas SR 41, Burbury CJ at 43 said:

"The general purpose of the statute no doubt is to cast the burden of legal costs incurred by an unsuccessful respondent to an appeal onto litigants generally (through the statutory levies made on their originating process) where through no fault of such a respondent the lower court, in which he succeeded, has gone wrong in law and that error is corrected on appeal. The legislature has apparently adopted the view that this risk of litigation (ie the risk of a judge or magistrate erring in law) being a common risk to all litigants, it is just that the cost of correcting such errors in law (so far as the fund extends) should be borne by all litigants."

54 At that time, the Appeal Costs Fund Act provided for the grant of a certificate where an appeal on a question of law succeeded. It now simply provides that an indemnity certificate is available whenever an appeal succeeds. In the same case, Crawford J referred to a number of considerations as to the proper exercise of the discretion. At 51, he said:

"The dominant purpose of the Act is 'to relieve unsuccessful respondents against what might be considered to be a real hardship which has fallen upon them, through no fault of their own but only through some miscarriage which has occurred in the decision below.' McLaughlin v Utah Construction & Engineering Pty Ltd Unreported (Supreme Court of New South Wales (FC), 3rd March, 1965) mentioned in Pataky v Utah Construction &Engineering Pty Ltd (1966) 84 WN (Pt 1) (NSW) 201, at p 203. The grant of such relief (ie of a certificate of indemnity), 'it can be inferred, proceeds on the assumption that the law is known, so that if an error of law occurs in a court of first instance or an inferior appellate court, such error may ordinarily be attributed to a fault in the administration of justice rather than of the parties so that the costs of having the error rectified ought not ordinarily to lie on the unsuccessful respondent to the appeal but to be paid from a fund contributed to by all litigants': Acquilina v Dairy Farmers Co-Operative Milk Co Ltd (supra). ... Winneke CJ and Newton J in McLennan v McBroom [1969] VicRp 70; [1969] VR 566, at p 573 granted an application 'as the question of law upon which the appeal succeeded involved a difficulty concerning the application of a former decision of this Court', and went on to say (as obiter dictum), 'In cases in which the Court from which the appeal is brought is induced into an error of law by a submission that is plainly without foundation, the discretion may well be exercised against a respondent and a certificate refused on the ground that to grant it would be contrary to the policy disclosed by the Act'."

55 Crawford J went on at 54 to note that an error of law by a court of first instance is usually caused by a party's submission which, as the appeal has shown, should not have been made, but this "mere fact was ... not intended by Parliament to be taken into account, or very few applications would ever be granted". At 56 his Honour also noted that another factor which may be taken into account, but the absence of which is not decisive, is whether the ruling on appeal "was of value"; that meaning, whether there was a ruling on a matter of common law, or an interpretation of a statute or a piece of subordinate legislation so as to make the law on the matter certain.

56 As to the merits, to repeat the details, this appeal was not from a decision of the Heritage Council, but from a tribunal conducting a fresh determination of its original task. I am not able to say that the Council's participation before the Tribunal was unreasonable, or in breach of the Hardiman principle. It is therefore not possible to say that the Council unnecessarily put itself in the position of having to be served with the appeal pursuant to r707(c). It was served and it participated. The question is whether having regard to the arguments put as to the question of law by the two protagonists - the appellant and Citta - it is entitled to access to the Fund at the expense of all litigants.

57 There is, of course, no suggestion that the Council was not acting in good faith. It is submitted that in adopting the role which it did in this appeal, it was doing so by virtue of its place in the State's resource management and planning system, and exercising its statutory functions; in particular, working "within the planning system to achieve the proper protection of Tasmania's historic cultural heritage": s7(1)(b) of the Heritage Act. I think I must accept that the Council "had a considerable interest in the matter distinct from the other respondent and the matter was an important one": Re Richard Pitt & Sons Ltd (1980) 4 ACLR 917 (unreported serial no 17/1980) per Nettlefold J at 920 (1).

58 The majority in Fernando (Crawford and Slicer JJ) did not grant to the members a certificate of indemnity, and there is no discussion in their Honours' separate reasons on the point[5]. Evans J took a different view of things, including the members' immunity, and would have ordered that the Tribunal as constituted by the members pay the costs, but with that Tribunal being granted an indemnity certificate. In Re a Psychologist (No 2) [2009] TASSC 76, Blow J dealt with an application for an indemnity certificate by a decision-maker whose decision was the subject of the appeal. At [4], his Honour described the situation as "unusual, in that the Board is not just an unsuccessful litigant, but also the decision-making body whose decision has been quashed because of errors. This does not appear to be the sort of situation that Parliament had in mind when it enacted the Appeal Costs Fund Act."

59 After referring to Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd (above), his Honour said at [6]:

"In such a situation, the fact that the board's error or errors necessitated the appeal will, at least sometimes, be a powerful factor weighing against the granting of an indemnity certificate. Some errors are more forgivable than others. If a board consisting predominantly of psychologists were to make a mistake in relation to a difficult question of statutory interpretation, for example, that would obviously be a situation where granting an indemnity certificate would be appropriate. But in this case the appeal succeeded because of a lack of procedural fairness and a failure to give sufficient reasons: ...".

60 On that basis, it seems to me that in the circumstances of this case a certificate should be granted. As there are no "disentitling circumstances", I can see no reason not to grant a certificate: Re Richard Pitt & Sons Ltd (above) per Cosgrove J at 922 (3). There is possibly an additional reason one should be granted. I am unsure of the Council's financial resources and it may be, although I doubt it, that without a certificate the appellant is disadvantaged: see Evans J (in dissent) in Fernando (above) at 254 [47].

61 For those reasons, the following further orders will be made:

(e) The appellant be paid two thirds of her taxed costs of the appeal.

(f) Citta pay 75 per cent of those costs of the appellant.

(g) The Tasmanian Heritage Council as constituted by the members named in appendix "A" pay 25 per cent of those costs of the appellant.

(h) The application under the Judicial Review Act is dismissed.

(i) Citta pay the appellant's costs of the institution of that proceeding.

62 There will be an order for a certificate under s8 of the Appeal Costs Fund Act in favour of Citta but only in respect of the appeal under s25 of the Act. A certificate will also be granted to the Heritage Council as constituted by the members named in the appendix.

Michael Lynch, David Hudson, Peter Cripps, Brad Williams, Caroline Evans, Roger Howlett, Robyn Jones, Sandra French, Mary Ramsay, John Deeprose and Allan Thompson

A member or person acting under any direction of the Heritage Council is not personally liable for an honest act done or omission made in the exercise or purported exercise of a power or the performance or purported performance of a function under this Act."

(1) A member of a statutory authority does not incur any personal liability in respect of any act done or omitted to be done by the member in good faith in the performance or exercise, or purported performance or exercise, of any function or power of the statutory authority or in the administration or execution, or purported administration or execution, of the Act under which the statutory authority is established."

[3] See Tasmanian Heritage Council v Citta Property Group Pty Ltd [2010] TASSC 68.

[4] See also Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 per Gaudron and Gummow JJ at [12]. For an example of where a tribunal appears merely to assist as to its powers and procedures, see Cemex Australia Pty Ltd v Takeovers Panel [2008] FCA 1572.

[5] Slicer J referred to the Appeal Costs Fund Act but in the context of the construction and application of the Statutory Authorities (Protection from Liability of Members) Act, saying that an immunity would prevent a successful appellant from obtaining an indemnity certificate.