APPEALED FROM: Peart and Kidd v Sullivans Cove Waterfront Authority and Citta Property Group [2011] TASRMPAT 181

HEARING DATE: 29 March, 24 September, 22 October 2012

Environment and Planning - Courts and tribunals with environment jurisdiction - Tasmania - Supreme Court - Orders that may be made - Failure of tribunal to give reasons as required by statute - Whether decision may be set aside.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s25(5), (6).

Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554, followed.

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56; (2003) 216 CLR 212, distinguished.

Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411, not followed.

Citta Property Group Pty Ltd: S R Morris QC and D R Armstrong

Tasmanian Heritage Council: Director of Public Prosecutions

Judgment Number: [2012] TASSC 79

MADELINE KIDD v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL (No 2)

1 On 24 September 2012 I decided to allow an appeal from a decision of the respondent, the Resource Management and Planning Appeal Tribunal, concerning the demolition of the former Government Printing Office at 2 - 4 Salamanca Place, Hobart: Kidd v Resource Management and Planning Appeal Tribunal [2012] TASSC 60. I ordered that the decision made by the tribunal on 2 December 2011, only insofar as it decided to affirm the decision of the Tasmanian Heritage Council ("the THC") to grant a permit under s39 of the Historic Cultural Heritage Act 1995 ("the HCH Act"), be set aside. I made that order after concluding that the tribunal had erred in law by failing to comply with the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), s24, by failing to give proper written reasons for its determination, and failing to make adequate reference to the evidence or other material on which it based a finding that there were no feasible and prudent alternatives to the demolition of the building in question. I allowed counsel to make written submissions as to consequential orders.

2 The appellant has sought orders that the matter be remitted to the tribunal for reconsideration; that the tribunal be differently constituted for the purpose of that reconsideration; and that her costs be paid by Citta Property Group Pty Ltd and the members of the THC. Citta is the developer that proposes to re-develop the "Parliament Square" site, which includes the building in question. The THC is not a body corporate. As a result, any order for costs can only be made against its members as individuals. Citta and the THC resisted the appeal, and were separately represented by counsel at the hearing.

3 Counsel for Citta have submitted that I should vacate my order setting aside the tribunal's decision; make an interlocutory order in the nature of mandamus requiring the tribunal to give reasons for its decision that comply with s24 of the RMPAT Act; and, after the provision of those reasons, determine two outstanding grounds of appeal that I did not originally consider it necessary to determine. If that submission fails, and I remit the matter for reconsideration, their submission is that I should not order that the tribunal be differently constituted. They have also submitted that Citta should not be ordered to pay all the appellant's costs because three of her grounds of appeal were unsuccessful.

4 Counsel for the THC has submitted that I should vacate the order setting aside the tribunal's decision; consider and reject the outstanding grounds of appeal; order the tribunal to provide proper reasons for its decision; order Citta and the members of the Heritage Council to pay no more than 75% of the appellant's costs; and grant the members of the Heritage Council a certificate under the Appeal Costs Fund Act 1968.

5 My order setting aside the tribunal's decision has not been "perfected". That is to say, it has not been recorded in a formal document, sealed with the seal of the Court. When an order has been made but not perfected, the Court has a discretionary power to vacate that order: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256; Electrolytic Zinc Co of Australia Ltd v Fisher, unreported, 31/1989 (Underwood J). However the public interest in maintaining the finality of litigation is a powerful factor that weighs against taking such a course: Smith, at 265.

6 The present situation has arisen because of a desire by counsel for Citta to fragment the hearing and determination of this appeal. There were six grounds of appeal. Four of them - grounds (a), (b), (c) and (f) - asserted errors in the tribunal's reasoning of such a nature that, if any of those grounds succeeded, the appropriate course would ordinarily be to remit the matter to the tribunal for reconsideration. When the Court remits a matter to the tribunal for reconsideration, it is often necessary to decide whether to order that the tribunal be differently constituted for the purposes of that reconsideration. I rejected grounds (a), (b) and (c), and found it unnecessary to determine ground (f). Ground (d) asserted that there was no evidence before the tribunal that there was no prudent alternative to the carrying out of the works in question. I found it unnecessary to determine that ground. If that ground had succeeded, the only appropriate course would have been to set aside the tribunal's decision and substitute a decision refusing approval for the demolition.

7 The remaining ground of appeal - ground (e) - asserted that the tribunal erred in law in failing to discharge its statutory obligations as to the giving of reasons for its decision. It is that ground that succeeded. When such a ground succeeds, on one view, one of the things the Court can do is to remit the matter to the tribunal for reconsideration pursuant to the RMPAT Act, s25(6)(b)(ii). Citta and the Heritage Council now contend that the appropriate course, when such a ground is the only ground that succeeds, is to make an order requiring the tribunal to provide proper reasons.

8 Counsel for Citta did not address any of these matters during the hearing of the appeal, nor did they mention any of these matters in their written outline of submissions. In particular, nothing was said as to the possibility of ordering the tribunal to provide proper reasons if ground (e) succeeded.

9 At the hearing of the appeal, senior counsel for Citta, Mr Morris QC, said the following:

"Now we submit that the appeal should fail and that your Honour should dismiss the appeal and make an order that the appellant pay the costs of the respondents. In the event that your Honour allows the appeal, the appropriate course will really depend on the basis upon which the appeal is allowed. Making submissions about what should happen in the event that the appeal is allowed, necessarily at this stage, is speculative and our position is we would prefer to make a written submission after receipt of your Honour's judgment in the event that the judgment allows the appeal - that is - make a written submission as to the order that should be made."

10 Counsel for the appellant apparently took those words to be referring, at least primarily, to possible submissions about the reconstitution of the tribunal if it were ordered to reconsider the matter. He said, "... I actually would embrace the suggestion of my learned friend that if we're looking at remitter that we all have an opportunity to put some further written submissions."

11 I did not foresee the possibility that, in the event of my allowing the appeal solely on the basis of the inadequacy of the tribunal's reasons, I would be asked to take any course other than remitting the matter to the tribunal for reconsideration. I apprehended that there might be a dispute as to whether I should give a direction that the tribunal be differently constituted for its reconsideration. I ordered that the tribunal's decision be set aside because I believed that to be an inevitable consequence of ground (e) succeeding. I did not make an order remitting the matter to the tribunal because I considered that it would be inappropriate to make such an order until any question as to reconstitution of the tribunal had been resolved.

12 Counsel for Citta have now submitted that the inadequacy of the tribunal's written reasons has not resulted in the tribunal's decision being invalid; and that the proper course was therefore not to set the decision aside, but to make an order in the nature of mandamus, requiring the tribunal to provide a further and better statement of reasons. I accept that such an order can be made pursuant to s25(5) of the RMPAT Act, which provides that this Court must hear and determine an appeal duly made from the tribunal, and "may make such orders as it considers appropriate". For present purposes I accept, without deciding the point, that the failure to give proper reasons did not amount to a jurisdictional error that vitiated the decision of the tribunal.

13 In their written submissions, counsel for Citta relied heavily on the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56; (2003) 216 CLR 212. That case concerned a Minister's decision to cancel a visa. The holder of the visa sought certiorari, prohibition and a declaration in the High Court. The High Court concluded that the Minister had not complied with a statutory requirement to give written reasons for his decision, but rejected all of the prosecutor's other contentions. However the relief sought by the prosecutor was refused. Gleeson CJ, McHugh, Gummow and Heydon JJ all held that the failure to give proper reasons did not constitute a jurisdictional error that invalidated the Minister's decision, and that the only appropriate course for the prosecutor was to seek a writ of mandamus to compel the Minister to provide reasons for his decision. In my view it is significant that that case did not concern a statutory right of appeal. Because of the nature of the jurisdiction the High Court was exercising, it was unable to set aside or quash the Minister's decision unless it was vitiated by jurisdictional error.

14 Counsel for Citta also referred me to the High Court's decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The judgments in that case concerned two appeals by the Minister from decisions of the Full Court of the Federal Court in judicial review proceedings. The Minister's appeals succeeded. The respondent to each appeal sought certiorari and prohibition in the High Court proceedings, asserting that decisions of the Refugee Review Tribunal should not be restored because that tribunal had not complied with statutory requirements whereby it was required to provide a written statement of reasons. Gleeson CJ, McHugh, Gummow and Hayne JJ all concluded that it had not been established that, within the meaning of a statutory provision, "procedures that were required ... to be observed in connection with the making of the decision were not observed".

15 Tracey J relied heavily on those two decisions in Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411. That was a statutory appeal from a decision of the Statutory Fishing Rights Allocation Review Panel. Under the Fisheries Management Act 1991 (Cth), s161(5), the Federal Court had broad discretionary powers similar to the powers that this Court has under the RMPAT Act, s25(5) and (6). His Honour concluded that the Panel had not complied with a statutory obligation to provide a written statement setting out the reasons for its decision, but rejected all of the appellant's other contentions. He reviewed a number of authorities as to whether an administrative decision may be set aside in such circumstances. At par[74], he concluded that he was bound by the High Court's decision in Palme to hold that the Panel's failure to comply with its statutory obligation to give reasons did not constitute a jurisdictional error which would warrant the setting aside of the Panel's decision. His Honour clearly considered that the only appropriate remedy was an order requiring the Panel to provide reasons which satisfied its statutory obligations, but no such order had been sought.

16 His Honour did not follow two decisions of the Full Court of the Federal Court in which administrative decisions were set aside solely on the ground that a statutory obligation to provide reasons had not been complied with: Dornan v Riordan (1990) 24 FCR 564; and Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554. Dornan v Riordan concerned an application for judicial review, not a statutory appeal. Sweeney, Davies and Burchett JJ said, at 573:

"... the law appears to us to be that a substantial failure to state reasons for a decision, in the circumstance that a statement of reasons is a requirement of the exercise under the statute of the decision-making power, constitutes an error of law."

Evidently their Honours were satisfied "that the decision involved an error of law" within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth), s5(1)(f). They did not address the distinction between a jurisdictional error that vitiates a decision and a non-jurisdictional error that does not. They did not address the distinction between an error in the decision-making process and an error relating only to the provision of reasons.

17 In CASA v Central Aviation, Bennett, Flick and McKerracher JJ were concerned with an appeal from the Administrative Appeals Tribunal ("the AAT"). It was common ground that the AAT had failed to comply with a statutory requirement as to the provision of reasons, and that such a failure constituted an error of law. Their Honours rejected contentions that the AAT had made other errors of law. They were not able to make an order for the provision of a proper statement of reasons because the member who made the AAT's decision had left the AAT. Under the Administrative Appeals Tribunal Act 1975 (Cth), s44(4) and (5), the Federal Court has powers very similar to this Court's powers under the RMPAT Act, s25(5) and (6). Their Honours held, at par[52], that s44(4) and (5) conferred "ample power to make an order appropriate to the factual and legal issues". At par[61], they held that a party to proceedings before the AAT has a statutory entitlement to reasons, and that the failure of the AAT to comply with its obligation, together with the inability of any current AAT member to provide reasons for the conclusions of a former member, could not deny to CASA a decision according to law, including an explanation for the result reached.

18 The relevant subsections in s25 of the RMPAT Act provide as follows:

"(1) A party to an appeal before the Appeal Tribunal may appeal to the Supreme Court, on a question of law, from any decision of the Appeal Tribunal in the appeal.

(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."

19 It is worth noting the wording of s25(1). A party aggrieved by a decision of the Tribunal is not given a right to apply for such relief as the Court considers appropriate. Such a party is given a right to appeal from the decision. If the contentions of counsel for Citta are correct, a failure to give proper reasons is an error of law that entitles a party to appeal from the tribunal's decision, but not to impugn it unless there has been some additional error. Such a state of affairs would be absurd.

20 Clearly s25 was intended to give this Court wide and flexible powers to make whatever order it considered just when it was asserted that the Tribunal had made a decision and had not complied with, or properly applied, the law. Clearly the Court was intended to have wide and flexible powers. Its jurisdiction was not confined to complaints about final decisions, but extended to "any decision of the Appeal Tribunal in the appeal". See Jackson v Purton [2011] TASSC 28 at pars[11] - [26]. Under s25(5), the court was empowered to "make such orders as it considers appropriate". When the section was enacted in 1993, Tasmania did not have judicial review legislation. The section was obviously intended to provide simple, flexible and effective rights of review, and to avoid the complexities involved in proceedings for prerogative relief.

21 An interpretation of s25 that promotes the section's purpose or object must be preferred to an interpretation that does not promote its purpose or object: Acts Interpretation Act 1931, s8A(1). Thus, if a party to an appeal is aggrieved only by the inadequacy of the tribunal's published reasons, I think s25(1) should be interpreted as permitting that party to appeal from the tribunal's decision. Counsel for Citta and the THC have not contended otherwise. In such a situation, the Court might consider it appropriate not to set the decision aside, but to order the tribunal to provide further written reasons that comply with s24. However there is no reason to interpret s25 as precluding the Court, in such a situation, if it considered it appropriate to do so, from ordering the setting aside of a decision that is or may be perfectly valid, and remitting the matter to the tribunal for reconsideration in accordance with s25(6)(b)(ii).

22 I think Palme should be distinguished on the basis that s25(6) empowers this Court to set aside a decision that is not vitiated by jurisdictional error. In that case, the High Court had no such power. In Kennedy, Tracey J proceeded on the basis that he could set aside the Panel's decision only if its failure to provide adequate reasons for its decision could give rise to an error of law which would justify a reviewing court setting aside that decision: par[60]. It may be that the relevant provisions of the RMPAT Act are indistinguishable from the legislative provisions relevant to that case. With great respect to his Honour, I consider that, for the reasons stated above, I should not follow his decision in Kennedy. In my view CASA v Central Aviation should be followed.

23 Justice should be seen to be done. In this case, the decision under appeal is the second of two decisions made by the same three decision-makers in the same proceeding. Porter J set aside their first decision and remitted the matter to the tribunal for reconsideration without directing that the tribunal be differently constituted: Kidd v Resource Management and Planning Appeal Tribunal [2011] TASSC 38; Kidd v Resource Management and Planning Appeal Tribunal (No 2) [2011] TASSC 46. I have held that their second set of reasons is inadequate. If I order them to provide a third set of reasons, the appellant might not perceive that justice has been done, nor might a hypothetical fair-minded lay observer.

24 Counsel for Citta referred me to the decision of Osborn J in Walia v Staycool Heating & Air Conditioning [2010] VSC 565. That was an appeal from an order of the Victorian Civil and Administrative Tribunal based solely on that tribunal not having given proper reasons for its findings for an award of damages in relation to a building dispute. His Honour declined to set aside the order, but made an order for the provision of further and better reasons. However, at par[15], he said this:

"In other cases the Tribunal's decision involves the exercise of a global discretion as to whether a permit or licence of some sort should be granted. If the exercise of that global discretion is not properly justified, the appearance of justice will not easily be satisfied if the Tribunal is given a further opportunity to provide reasons."

25 If a fresh statement of reasons was ordered and provided in this case, the new reasons might be impeccable, but there is a significant chance that the appellant would contend that they contained errors of law not previously identified or revealed. In that situation, this litigation could get even messier. If the fresh reasons were provided pursuant to an interlocutory order, the appellant would need to apply to amend her notice of appeal to add further grounds. If the fresh reasons were provided pursuant to a final order, she would need to apply for an extension of time under s25(3) of the RMPAT Act for the institution of a second appeal from the same decision. With all due respect to the three-decision makers, the fact that they have already made appealable errors twice in the same proceeding suggests there is a significant likelihood that, if they are required to produce a third set of reasons, it will at least be asserted that those reasons will reveal new errors of law.

26 In his written submissions, counsel for the appellant informed me that Citta had made a second application for a permit under the HCH Act, s39, in respect of the same proposed works; that the THC had granted a second permit as sought; that clients of his had lodged appeals to the tribunal that related in part to the THC's second decision; that those appeals were listed for a five-day hearing commencing on 25 February 2013; and that the chairman of the tribunal had advised that none of the tribunal members who had participated in the decision now under appeal would be participating in that hearing. Those assertions have not been disputed by Citta or the THC. I therefore accept them to be correct. One of the matters that weighs in favour of setting aside the tribunal's second decision and remitting the matter to the tribunal for reconsideration is that, if such orders are made, the tribunal will have the opportunity to deal with that reconsideration at the same time as the hearing of the new appeals.

27 For these reasons, had I not already made an order setting aside the tribunal's decision, I would now be doing so, on the basis that I think that course would be preferable to ordering the tribunal to provide a third statement of reasons.

28 A court's power to vacate or vary an order after it has been made orally and before it is perfected should only be exercised in "most exceptional circumstances": In re Barrell Enterprises [1973] 1 WLR 19 per Russell LJ at 24. For example, in Dietz v Lennig Chemicals Ltd [1969] 1 AC 170, a master had made an order approving a settlement under fatal accidents legislation, the solicitors on both sides being unaware that the widow had already remarried. The order was set aside before it was perfected.

29 At the hearing of this appeal, counsel for Citta was afforded an opportunity to make submissions as to all aspects of the appeal, including submissions as to what orders would be appropriate for the disposition of the appeal if it succeeded. Such submissions need not have been complex. Except in cases of great complexity, such submissions are ordinarily made at the hearing of the appeal, and not reserved for later. Counsel for Citta did not proceed in the usual way, and did not even outline the scope of the possible orders that might be sought in the event of any particular ground or grounds succeeding. Counsel for Citta were given an opportunity to be heard in the usual way, failed to make submissions about the disposition of the appeal as counsel usually would, and thus failed to take appropriate advantage of the opportunity to be heard. As far as I am aware, an order for the provision of a further and better statement of reasons has never been made in an administrative law case in Tasmania. Counsel has not identified any misapprehension as to the facts or the law on my part. The present situation has arisen because I did not foresee that an unusual submission as to the disposition of the appeal would be made at a later than usual stage.

30 Those being the circumstances, I do not consider that this would be an appropriate case for me to vacate my order, even if I were persuaded that an order for a further statement of reasons was the only order that I could properly have made, or that such an order was the most appropriate order in the circumstances.

A direction for the reconstitution of the tribunal?

31 The decision of the tribunal has been set aside. The appeal to it from the decision of the THC needs to be re-determined. Unless the law is changed, which seems likely, a finding of fact will have to be made as to whether there is any "prudent and feasible alternative" to the demolition proposed by Citta: HCH Act, s41. It is therefore appropriate that any re-determination be undertaken by the tribunal rather than me. I will therefore make an order remitting the matter to the tribunal for reconsideration. I need to decide whether to add a direction that none of the original decision-makers participate in that reconsideration.

32 It is clear that the original decision-makers must not take any part in the reconsideration if a fair-minded lay observer might reasonably apprehend that they might not bring impartial minds to the decision-making process: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294; R v Watson; ex parte Armstrong [1976] HCA 39; (1977) 136 CLR 248; R v Lusink; ex parte Shaw (1981) 55 ALJR 12; Re JRL; ex parte CRL [1986] HCA 39; (1986) 161 CLR 342; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v R [1994] HCA 30; (1994) 181 CLR 41; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Ebner v Official Trustee (2000) 205 CLR 377; Seablest Pty Ltd v Smith [1997] TASSC 36; (1997) 6 Tas R 350 at 361.

33 Sometimes it will be appropriate to direct the reconstitution of a statutory decision-making body where the common law would not require the original decision-makers to disqualify themselves on the ground of a reasonable apprehension of bias: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39; Steedman v Baulkham Hills Shire Council (1993) 31 NSWLR 562 at 577; Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186 at par[48]; R v Resource Planning and Development Commission; ex parte Dorney (No 3) [2003] TASSC 84; (2003) 12 Tas R 147 at pars[13] - [19].

34 The original decision-makers have twice made decisions in favour of Citta, both times publishing reasons that showed great enthusiasm for Citta's development proposal. In the first (S Peart and M Kidd v Sullivans Cove Waterfront Authority and Citta Property Group [2011] TASRMPAT 12) they failed to apply s41 of the HCH Act properly. In the decision now under appeal, their reasons failed to reveal whether they had applied that section properly or not. In those circumstances, I think a fair-minded lay observer might reasonably apprehend that they might not bring impartial minds to their third decision-making process. If I am wrong about that, I believe the appellant may think that a re-hearing before the same decision-makers could be worthless, their views already having been stated, and that it would therefore still be appropriate to direct that they not take part in the reconsideration. I will therefore give such a direction.

35 The appellant has been successful in this appeal. Ordinarily, costs follow the event. When the successful party is successful in relation to some issues but unsuccessful in relation to others, that party is generally still awarded costs, but sometimes a different course is taken if one or more unsuccessful issues was clearly dominant or separable: Burnie Port Corporation Pty Ltd v Bank of Western Australia (No 3) [2003] TASSC 132; (2003) 12 Tas R 325 at pars[26] - [27]; Sanders v Snell (No 2) (2000) 174 ALR 53 per Kirby J at par[14]. In this case the appellant has been successful as to ground (e) and the arguments as to the disposition of the appeal, and unsuccessful as to grounds (a), (b) and (c). She has neither won nor lost in respect of grounds (d) and (f). In my view the grounds (a) and (b) were by no means unmeritorious. Little time was needed to address ground (c). The appellant did not waste the Court's time or run up costs unnecessarily. In the circumstances, I think costs should follow the event in the usual way.

36 As the THC is not a body corporate, the only appropriate course is to make an order for costs against Citta and the individuals who were members of the THC at the relevant time. Counsel for the THC has provided me with a list of their names.

37 The members of the THC are entitled to apply for a certificate under the Appeal Costs Fund Act: Kidd v Resource Management and Planning Appeal Tribunal (No 2) (above) at pars[50] - [52]. In my view this is a proper case for the granting of such a certificate to them. There is no reason not to grant one.

38 For the reasons stated, I make the following orders:

1. That the appeal from the decision of the Tasmanian Heritage Council be remitted to the respondent for reconsideration in accordance with a direction that none of the members who participated in the making of that decision are to participate in that reconsideration.
2. That Citta Property Group Pty Ltd, Dianne Snowden, Michele Mosely, Sandra French, Bradley Williams, Peter Cripps, Allan Thompson, Mary Ramsay, Nic Haygarth, Peter Button, Stuart King, Alex van der Hek, Christopher Tassell, Frazer Read, Tony Brown and Sarah Lebski pay the appellant's costs of and incidental to this appeal.
3. That a certificate under s8 of the Appeal Costs Fund Act 1968 be granted to the individuals named in order no 2.
4. That a certificate under s2 of the Appeal Costs Fund Act 1968 be granted to Citta Property Group Pty Ltd.