So characterised, it follows in my submission that the power which the Tribunal has to regulate its own procedures and to ensure that the procedures are not improperly used, at least extends to a power to set aside a notice of withdrawal, or purported notice of withdrawal, where the interests of justice dictate that as the appropriate course: Christodoulou -v- Disney Enterprises Inc [2006] FCAFC 183 at [25-28], KBRV Resort Operations Pty Ltd -v- Chilcott [2001] NSWCA 116; (2001) 51 NSWLR 516. Each of those cases is concerned with a notice of discontinuance in Court proceedings: but the reasoning clearly applies by analogy to a notice of withdrawal lodged with the Tribunal.

As a consequence I submit that this Tribunal does have jurisdiction to review the circumstances of the notice of withdrawal. If that proposition is accepted, then the Tribunal will need to investigate those circumstances and form a view as to whether it is in the interests of justice to permit the State of Tasmania to discontinue the proceeding. If the ultimate answer to that question is that it is not, then the Tribunal ought in my respectful submission set aside the notice of withdrawal and proceed to make the determination which it is required to make pursuant to the order made by the Supreme Court.

We might need to have a further hearing about that in order for the Tribunal to make a factual finding, based on evidence, as to the purpose which lies behind the notice of withdrawal.

There is a further submission. It is that it is not open to the State of Tasmania to withdraw this proceeding pursuant to section 13(6) when the Tribunal, and the State of Tasmania, are each bound by the order made by the Supreme Court. The State of Tasmania filed a notice of appearance in the Supreme Court proceeding and was heard before the order was made. Plainly it too is bound by the order. It cannot seek to avoid the consequences of that order by purporting to now deprive the Tribunal of jurisdiction in the manner that it has." (Underlining added.)

6 The Tribunal, as can be seen above, made no findings as to the purpose which lay behind the State's purported withdrawal of the appeal, something which, as will appear, is, in my view, of significance to the disposition of this appeal.

7 The appellant's notice of appeal sets out the grounds of appeal as follows:

"2.1 The grounds of the appeal are that the respondent erred in law as follows:

(a) It misconstrued its statutory power to hear and determine appeal 151/12P (the appeal) lodged with it in that it concluded that section 13(6) of the Resource Management & Planning Appeal Tribunal Act 1993 conferred an unqualified right upon the State of Tasmania to withdraw the appeal;

(b) It misconstrued its statutory powers as not including a power to prevent an abuse of process by the withdrawal of an appeal;

(c) It misconstrued its statutory powers as not conferring a power to regulate its own processes by limiting the ability of an appellant to withdraw an appeal, or by conferring a power to set aside a notice of withdrawal, in circumstances where the withdrawal of the appeal was likely to frustrate its own processes;

(d) It failed to act in obedience to the order made by this Honourable Court on 22 May 2013 that it reconsider its decision of 28 March 2013 and in accordance with a direction that it must vary the permit conditions for headworks charges in accordance with the facts as found by it; and

(e) It failed to appreciate that the order made by this Honourable Court on 22 May 2013 was binding upon it, the State of Tasmania and the statutory predecessor of the appellant and as such displaced any right which the State of Tasmania might otherwise have had to engage section 13(6) of the Resource Management & Planning Appeal Tribunal Act 1993 and as a consequence wrongly determined that the State of Tasmania, by exercising such right, could deprive it of its jurisdiction to act in obedience to the order made by this Honourable Court on 22 May 2013.

2.2 Alternatively, the appellant appeals, on a question of law, from the decision of the respondent in the appeal and further engages the general supervisory jurisdiction of this Honourable Court in respect of the conduct of appeals before the respondent and contends that:

(a) the effect of the order made by this Honourable Court on 22 May 2013 is that the State of Tasmania, being bound by the order, did not have a right to engage section 13(6) of the Resource Management & Planning Appeal Tribunal Act 1993 in the appeal filed by it with the respondent;

(b) as a consequence, the notice of withdrawal purportedly filed by the State of Tasmania in the appeal, was without legal effect; and

(c) therefore the respondent erred in law in deciding that the exercise of its jurisdiction was terminated by the purported withdrawal of the appeal."

8 At the commencement of the hearing before me the appellant sought and was granted leave to amend ground 2.2(b) to read as follows:

"as a consequence, the notice of withdrawal purportedly filed by the State of Tasmania in the appeal, was without legal effect, and/or constituted an abuse of the processes of the Tribunal".

9 Counsel for the State, Mr Turner, drew attention to the language of s25(1) of the Act which provides as follows:

"25 (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."

10 He submitted that upon the State's appeal having been withdrawn no "decision" of the Tribunal relevantly falls within the phrase "in the appeal".

11 He maintained that Parliament had chosen to use that phrase, rather than, for example, "in respect of the appeal" or "in relation to an appeal" and if the relevant "decision", of the Tribunal is not one "in the appeal", then the appeal to this Court is incompetent.

12 He submitted that "decision ... in the appeal", properly construed, means a decision made at some point "following institution and preceding the conclusion of the appeal", which may be through one of several mechanisms including withdrawal of it under s13(6).

13 Counsel referred me to the decision of the New South Wales Court of Appeal in Commissioner of Corrective Services v Walker [2007] NSWCA 213, in which an argument had been made that a decision with respect to jurisdiction to hear an appeal was not a decision "with respect to the appeal" within the meaning of the relevant section, but was a decision on a question anterior to it, namely whether jurisdiction should be assumed or not. Santow JA, rejecting that argument, held that a decision concerning jurisdiction was as much "in respect to the appeal" as any merits decision was in relation to such appeal. His Honour said at [30]:

"This was a decision of a Tribunal as to whether it should or should not entertain the appellant's appeal, by reference to whether the appeal to the Tribunal was competent. Though it was essentially a decision as to jurisdiction, that to my mind is no less a decision of the Tribunal 'in respect of an appeal' as would be a merits decision in relation to that appeal once jurisdiction was assumed."

14 Counsel for the State submitted that the point laboured was that if the phrase used in s25(1) was "in respect of the appeal" or "in relation to the appeal" then any decision of the Tribunal eschewing jurisdiction is one caught by it. However, he said, Parliament has chosen to use the phrase "in the appeal".

15 To my mind there is no relevant distinction to be made here.

16 The appellant's application to the Tribunal to set aside the notice of withdrawal, as I have already noted, begged the very question whether appeal 151/12P remained on foot. The Tribunal had to grapple with the issues of whether the purported withdrawal of that appeal was valid as a matter of law given the order made by Blow CJ and, if it was, whether it was an abuse of the Tribunal's processes and one which the tribunal had power to deal with, in order to be able to determine its own jurisdiction to proceed to further hear the appeal.

17 Had the Tribunal assumed jurisdiction by deciding either of those key issues against the State, the appeal would have been extant and the decision might, arguably at least, not have been one, "in the appeal". The decision might then be said to have not effectively disposed of the proceedings, but see Jackson v Purton [2011] TASSC 28 at [39]. The Tribunal however, decided in favour of the State that the appeal was not extant and that it did not have jurisdiction to entertain the appellant's application and, as such, it did effectively dispose of the appeal. Such a decision is clearly reviewable; Director-General of Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571 at 593, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355 and Jackson v Purton at [19] - [39].

18 As in Commissioner of Corrective Services v Walker (supra) the decision involved the Tribunal determining its jurisdiction. A decision as to whether the Tribunal had jurisdiction to continue to hear and determine appeal 151/12P as directed by this Court to do so, is to my mind, quite clearly a decision in that appeal. No words of wider import are required for that conclusion. I would regard any other view of it as based on mere semantics.

19 I am satisfied that the appellant's appeal is one on a question of law, from a decision of the Appeal Tribunal in appeal 151/12P.

20 Sections 13(6) and (7) of the Act provide as follows:

"13 Institution of appeals to the Appeal Tribunal

(6) A party to an appeal may withdraw his or her appeal by advising the Appeal Tribunal in writing.

(7) If a party withdraws his or her appeal, the Appeal Tribunal is to notify any other parties to the appeal."

"13A Appeal Tribunal may make application under Vexatious Proceedings Act 2011

On receipt of an appeal under section 13, the registrar of the Appeal Tribunal may apply to the Supreme Court under the Vexatious Proceedings Act 2011 for a vexatious proceedings order in relation to the appellant."

(1) For the purpose of an appeal, the Appeal Tribunal may do all things necessary or convenient to be done for or in connection with the hearing and determination of the appeal."

"22A Power of Appeal Tribunal to dismiss an appeal

The Appeal Tribunal is to dismiss an appeal if it is satisfied that the appeal is frivolous or vexatious or may dismiss an appeal if the appellant fails to comply with its directions."

24 Counsel for the appellant submits that there are three questions raised by the appeal. They are:

"First, does section 13(6) of the RMPAT Act 1993 confer an unqualified right on the State to withdraw its appeal? This engages paragraph 2.1 grounds (a) (b) and (c).

Second, does the order of Blow CJ have paramount effect? This engages paragraph 2.1 grounds (d) and (e).

Third, does this Court have jurisdiction to regulate conduct which is an abuse of the processes of the RMPAT and, if so, is such abuse made out on the facts? This engages ground 2.2 subparagraphs (a), (b) & (c), as sought to be amended."

25 As will appear, I focus in these reasons, in substance, only on the submissions made on behalf of the appellant as to the first of those three questions.

"A power of this type ought to be broadly construed. In Parsons -v- Martin [1984] FCA 408; (1984) 58 ALR 395 the Full Court of the Federal Court of Australia was concerned with the power of a Court of Petty Sessions to issue a letter of request to a foreign authority, in a federal prosecution, for the production of evidence. Ultimately the court determined that the Court of Petty Sessions did not have jurisdiction to do so. At 401, after noting that a Court of Petty Sessions has no inherent jurisdiction, the Court said:

'In our opinion a court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred. In view of the way in which the phrase "inherent jurisdiction" is used in many of the cases, it seems advisable generally to avoid the use of it to refer to this incidental and necessary power of a statutory court.

It would not be right to say that, because it is a court of limited jurisdiction, a Court of Petty Sessions has no power to regulate its own procedures. But the submission of the appellants that if a matter is not truly one of jurisdiction it must be one of procedure and within the competence of the court to regulate goes too far. The relevant distinction for present purposes is not between jurisdiction on the one hand and procedure on the other but rather between matters of substantive law and adjectival law ...'

Counsel noted also that the Court of Appeal of the Supreme Court of Victoria in Herald & Weekly Times Pty Ltd -v- State of Victoria [2006] VSCA 146 touched upon the implied power of the VCAT to regulate its own procedures by reinstating a proceeding previously struck out by it. The Court concluded that the VCAT had jurisdiction to reinstate. The reasoning of the court at [18-19] is persuasive for present purposes ...".

27 Counsel for the appellant then went on the cite a number of authorities which establish that a power, even an unqualified one, to discontinue a proceeding commenced in a court, is not absolute, that a notice of discontinuance may be struck out, or set aside, if it is used for an improper purpose or its filing is an abuse of process, and that where leave is required to discontinue, it is relevant to consider if the grant of leave will cause injustice to a defendant or deprive an advantage already gained: Gilham v Browning [1998] EWCA Civ 139; [1998] 1 WLR 682; Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369 at [26] - [29]; Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation [2000] SASC 345; Covell Matthews & Partners v French Wools Ltd [1977] 2 ALL ER 591, affirmed in Covell Matthews & Partners v French Wools Ltd [1978] 2 ALL ER 800, and Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Company Pty Ltd (No 10) [2013] WASC 103.

28 Counsel then continued in his written submissions:

"The cases I have referred to are examples, in my submission, of the application to individual facts of a broader principle: the power of a court, or in this case a tribunal, to regulate its own procedures so as to ensure that they are not used for improper purposes or to obtain unfair or improper advantage. The short hand expression abuse of process is plainly applicable to a wide range of conduct.

By analogy, it is submitted, the power of the RMPAT to regulate its own procedures ought to be similarly construed.

Whether an abuse of process is established on the facts was not determined by the RMPAT. Unless this Court is able to make that determination for itself, which is dealt with in the third question, the matter I submit must be remitted to the RMPAT for it to make this determination in the event that only this ground of the appeal succeeds."

29 Counsel for the State's overarching submission was that such powers as the Tribunal may have to prevent an abuse of its processes do not extend to prevent an appellant before it from exercising the statutory right conferred by s13(6) of the Act, and that on a proper construction of that subsection the right to withdraw an appeal is unconstrained.

30 He submitted that the right, being one created by Parliament, trumps any power of the Tribunal to control its processes and likewise is not constrained by the supervisory jurisdiction of this Court.

31 In his written outline of facts and contentions, counsel for the State submitted:

"It is clear, it is respectfully submitted that Parliament has determined that an Appellant has the right at any time during the course of an extant appeal to withdraw it. There is nothing whatever in the text of the provision which evinces any restriction, as asserted by the Appellant - that it is to yield in some way to the Tribunal determining that it was appropriate to allow (or not allow) withdrawal. It might be observed that if the intention was to afford to the Tribunal some oversight - to do precisely that which is contended by the Appellant that it may do by necessary implication - it would have been easy enough to say so."

32 Counsel went on to develop this submission, contending that the appellant's argument that the Tribunal and the Court, in the exercise of power to control the processes of the Tribunal, are able to restrict the operation of s13(6), necessarily entails construing s13(6) in a way that it is subject to such powers, and that he maintained requires the impermissible reading in of words, or the textual construction of the words used to, in effect, allow such power to prevail.

33 He submitted that the right to withdraw an appeal cannot properly be described as one pertaining to procedure, as withdrawal disposes of the proceeding, and just as the right to commence an appeal in the Tribunal is not procedural but substantive, so too the right to withdraw an appeal should be characterised as substantive.

34 Counsel submitted that even more fundamentally, the right is a statutory right and that "Parliament has spoken" by inserting that right by the Land Use Planning and Approvals Amendment Act 2007. The right he says is "unconstrained".

35 He pointed out that the relevant part of the second reading speech on the amendment bill by which s13(6) came to be inserted in the Act reads:

"Section 13 is to be amended to allow a person to formally withdraw an appeal if they no longer want to proceed. Currently there are no powers under the Act to withdraw an appeal even though the person no longer wants proceed."

36 Counsel submitted, in effect, that to imply words, even if the preconditions for implying words into a statute were met, or to so construe the text of the words used as to subject the right to powers of the Tribunal or the Court would offend the principle in Nicholas v R [1998] HCA 9; (1998) 193 CLR 173, where Brennan CJ said at [37]:

"To suggest that the statutory will of the Parliament, expressed in s15X, is to be held invalid because its application would impair the integrity of the Court's processes or bring the administration of criminal justice into disrepute is, in my respectful opinion, to misconceive both the duty of the Court and the factors which contribute to public confidence in the administration of criminal justice by the Court. It is for the Parliament to prescribe the law to be applied by a Court and, if the law is otherwise valid, the Court's opinion as to the justice, propriety or utility of the law is immaterial. Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the Court takes to be contrary to its opinion as to the proper balance to be struck between competing interests. To hold that a Court's opinion as to the effect of a law on the public perception of the Court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the Court's opinion about its own repute to the level of a constitutional imperative. It is the faithful adherence of the Courts to the laws enacted by the Parliament, however undesirable the Courts may think them to be, which is the guarantee of public confidence in the integrity of judicial process and the protection of the Court's repute as the administrator of criminal justice." (Counsel's emphasis.)

37 As to the appellant's assertion that the withdrawal of the appeal by the State was an abuse of process, counsel for the State said:

"Several things need to be said in response to that being:

• First, the exercise of a power specifically conferred without any restriction(s) on such exercise, does not constitute an abuse;
• Secondly, whatever the legal effect of the orders made by the Court on the 22nd May 2013, the State was not prevented from exercising its right under s.13(6). There was no order restraining the State from doing that (nor for that matter any order requiring the State to do something).
• Thirdly, if the Court accepts that it is able to exercise its supervisory jurisdiction (which presupposes that it has properly been engaged) the State ought to be permitted to put evidence before the Court in answer to the contention(s) that its action(s) constitute an abuse of process; and to resist the relief sought."

38 I do not understand counsel for the State to be advancing the proposition that because the power to withdraw an appeal is specifically conferred without any restriction, it can be validly exercised even in circumstances where such exercise would actually amount to an abuse of process. Rather, I take him to be submitting that there is no evidence of any such abuse. And, in his oral submissions I understand him to be saying also, that the unconstrained nature of the statutory right to withdraw is material as to the extent of any power that may be implied as allowing the Tribunal to control its own processes.

39 As to the question of the supervisory jurisdiction of the Court, counsel for the State, while arguing that such jurisdiction was not properly invoked on an appeal pursuant to s25 of the Act, submitted:

"The Court always retains a discretion as to whether or not to give relief when its inherent (supervisory) jurisdiction is engaged and that must be exercised judicially which in turn requires a consideration of relevant evidence. That evidence may extend well beyond the materials that were before the Tribunal which materials make their way to the Court for consideration upon an appeal ..."

40 To my mind, there are three central issues that may be distilled from the notice of appeal.

41 The first focusses on the Tribunal and the question of whether it can be deprived of its jurisdiction to determine an appeal in any case whatsoever where an appellant gives notice that the appeal is withdrawn, or whether the Tribunal has jurisdiction to determine whether, in some circumstances, the purported withdrawal is of no legal effect, or if it is of legal effect, then whether it is an abuse of the processes of the Tribunal?

42 The second focusses on the State and the question of whether a party to an appeal before the Tribunal has an unqualified right to withdraw that appeal, or whether a withdrawal is deprived of legal effect when that party is privy to an outstanding order of this Court as to the future conduct of the appeal, or whether it is an abuse of process if the purpose of the notice is to avoid obedience to an order of this Court?

43 The third focusses on the Court and the question of when it should exercise its power to prevent an abuse of the Tribunal's processes?

44 In my view it is only appropriate for me to answer the first of those three questions.

45 The second is, in the first instance for the Tribunal to determine when addressing the question of whether it has jurisdiction to continue to determine the appeal in accordance with the directions of Blow CJ, a question which it did not address in its decision. The answer to that question will depend upon the Tribunal's finding as to the State's motivation in withdrawing the appeal. Counsel for the appellant's submissions recognise that.

46 The third question does not admit of an answer in the absence of an answer to the first two questions, and it is also dependent upon evidence as to the State's motivation in withdrawing its appeal.

47 It is true that the Tribunal is a creature of statute and has no inherent jurisdiction (Fernando v Medical Complaints Tribunal [2007] TASSC 44; (2007) 16 Tas R 237 at 243 [14] per Crawford J (as he then was). However the expression "inherent jurisdiction" has come to be used to describe a power which a court may have "independent of statutory authority, express or implied", Parsons v Martin (supra) at 400.

48 In my view however, the Tribunal fell into error in concluding that it did not have statutory authority, express and/or implied, to regulate its own procedures.

49 The Tribunal's error was in reasoning that it had no express power to deal with the application that was before it on the basis that s22(1) had no application because it was limited by the words "for or in connection with the hearing and determination of the appeal", and there was no "extant" appeal before it.

50 The application that was before it begged the question whether there was an appeal on foot, which, in turn, required it to consider whether the purported notice of withdrawal under s13(6) of the Act was, firstly of any legal effect given the State was privy to the order of Blow CJ, and secondly, if it was, whether the Tribunal was nonetheless able to set aside or disregard the purported withdrawal because it was an abuse of process.

51 The Tribunal did not address that question, rather it simply concluded that a party has a right to withdraw an appeal which is beyond any control exercisable by the Tribunal.

52 I observe that the Tribunal clearly had jurisdiction, to determine its jurisdiction, notwithstanding that that may have involved findings as to the legal status of the purported withdrawal of the appeal by the State.

53 In Attorney-General of Tasmania v Estcourt and the Wilderness Society Inc [1995] TASSC 65; (1995) 4 Tas R 355, Wright J, with whom Crawford J agreed, said at 361:

"It appears to me that every body, including every tribunal which has a duty to act according to law, must, for the purpose of guiding or moulding its action, satisfy itself as to what the law is, not only for the purpose of satisfying itself that it has jurisdiction to deal with the subject matter of any dispute which it is asked to resolve, but also for the purpose of deciding substantive issues which are raised during the course of any such dispute. In this process such a body will inevitably be required to make 'findings' or 'determinations' as to the relevant law. Whatever these decisions are called by the body itself, they are not determinations or decisions having the binding force of a court order. Any procedural or substantive error of law made by such a tribunal, if acting judicially, will be reviewable by way of prerogative writ or, more usually in modern times, by direct appeal to a court of law."

54 The Tribunal should have gone on to consider whether, as a matter of law, the appeal purportedly withdrawn by the State was still properly before it, and if so it should have proceeded to deal with it in accordance with the order of Blow CJ. If not, it should have considered whether the purported withdrawal was an abuse of its processes, and if it was, it should have dealt with it by setting it aside or ignoring it in the exercise of its express power under s22(1), and/or its implied power to do everything necessary for the effective exercise of its express powers.

55 As to the existence of an implied power to deal with the application before it, if such power was indeed required, in view of the express power contained in s22(1) of the Act, I accept the submission of counsel for the appellant that with the express power comes that which is necessary in order to make the exercise of the express power effective.

56 As was observed in R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1 at 7 per Menzies J, with whom Barwick CJ, Walsh and Stephen JJ agreed:

"Inherent jurisdiction is not something derived from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to ordinary standards of statutory construction and it would be inaccurate to describe it as 'inherent jurisdiction' ...".

57 There is no reason apparent to me from the Act, or from the allied Land Use Planning and Approvals Act 1993, as to why s22(1) of the Act ought not, as a matter of statutory construction, be extended by implication to the extent it might be thought necessary to allow the Tribunal to prevent itself being inappropriately deprived of jurisdiction or to prevent an abuse of its processes.

58 The very purpose of s22(1) is to so empower the Tribunal as to allow it to do all that is to be done for the proper determination of an appeal brought before it, and the use of the words "in connection with" in the phrase "do all things necessary or convenient to be done for or in connection with the hearing and determination of the appeal", if not providing express power to prevent an abuse of process, is in my view, undoubtedly indicative of the existence of an implied power to do so.

59 The passage from Parsons v Martin (supra) at 401, relied upon by counsel for the appellant and set out above at [26] of these reasons, was cited with obvious and complete approval by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 at [25] and is apposite to the case of the Tribunal.

60 That the Tribunal is not a court, but an administrative tribunal is no impediment, in my view, to implying from the Act the power necessary for it to prevent an abuse of its processes.

61 In Grassby v R [1989] HCA 45; (1989) 168 CLR 1 at 16 Dawson J, with whom Mason CJ and Toohey J agreed, said at 16:

"However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise ... those implied powers may in many instances serve a function similar to that served by inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent."

Whilst Dawson J was there referring to a court, his Honour said at 17:

"The fact that in the conduct of committal proceedings a magistrate is performing a ministerial or administrative function is, of course, no bar to the existence of implied powers, if such are necessary for the effective exercise of the powers which are expressly conferred upon him."

And of course, there may, in the case of an administrative tribunal, be an overlapping of judicial and administrative powers. A good example of such overlapping is provided by Medical Council of Tasmania v Medical Complaints Tribunal [2005] TASSC 24.

62 That case concerned a decision by a statutory tribunal, in the course of professional disciplinary proceedings, prohibiting the reporting or other disclosure of the proceedings. The tribunal proceedings had many of the characteristics of judicial proceedings. At [14], Evans J concluded that the decision in question could properly be characterised as administrative for the purposes of the Judicial Review Act 2000, but commented that it might also be judicial. See also Kentish Council v Wood [2011] TASFC 3 and Von Stalheim v Anti-Discrimination Tribunal [2013] TASSC 24.

63 It was not doubted by the Victorian Court of Appeal in Herald & Weekly Times Pty Ltd v State of Victoria (supra) at [18] - [19], that the Victorian Civil and Administrative Tribunal had implied power to deal with proceedings that were before it, including those that had been settled or struck out.

64 Although in that case the relevant legislation, the Victorian Civil and Administrative Tribunal Act 1998 recognised in ss75 and 76 that there was a difference in the nature and the character of an order that strikes out a proceeding and one that dismisses it, namely that the power to strike out was conferred separately from the power to dismiss the proceeding, enabling counsel for the State of Victoria to submit that since an order striking out a proceeding ordinarily does not terminate it, the statutory power to strike it out carries with it, by necessary implication, the power to reinstate it, the Court nonetheless expressed its final view in more general terms as follows:

"... in our view, the Tribunal has the implied power, in appropriate circumstances, to reinstate a proceeding that has been struck out. Such a power is incidental to its obligation to administer the Act and to deal fully with proceedings that are properly before it, including those that have been settled through the mediation process or otherwise, and notwithstanding that they have been struck out."

65 As a matter of statutory construction, the existence of s13A dealing with vexatious appellants and s22A of the Act dealing with the dismissal of an appeal as frivolous or vexatious are not features of the Act from which it could be inferred, in my view, that Parliament did not intend the Tribunal to have implied powers necessary for the effective exercise of the powers expressly conferred on it, including the prevention of abuse of process affecting the determination of an appeal brought before it.

66 The Vexatious Proceedings Act 2011 is a discrete piece of legislation which allows many people to apply to the Supreme Court for a vexatious proceedings order, including a registrar or other officer of an Australian court or tribunal and the administrator of the Magistrates Court. It is not confined to administrative tribunals, much less the Resource Management and Planning Appeal Tribunal and it does not, I apprehend, give rise to the application of the canon of statutory construction that the express inclusion of one power should be taken as excluding the implication of another, in this case, a power to deal with an application such as the one that was before the Tribunal.

67 As to s22A a distinction can readily be observed between a power to deal with an abuse of process and a power to dismiss an appeal as frivolous and vexatious. In cases of abuse of process the power to, for example, stay proceedings, set aside procedural steps in an appeal and so on are orders that do not necessarily terminate an appeal, rather they regulate it, or stay it, or maintain or reinstate it. The dismissal of an appeal determines it finally, subject to any appeal to this Court (or beyond).

68 That s22A provides an express requirement for the Tribunal to dismiss an appeal if it is satisfied that an appeal is frivolous or vexatious, and a power to dismiss if the appellant fails to comply with the Tribunal's directions are, once again in my judgment, matters, the express inclusion of which should not be taken as excluding the implication of powers to deal with an application such as the one that was before the Tribunal in the present case.

69 No help is provided by reference to the second reading speech in relation to amending Act No 26 of 2007, but it may well be that the reason for the express inclusion by that Act of the power in s22A to dismiss an appeal if an appellant fails to comply with directions is that such a power is substantive given the finality of dismissal, whereas by contrast, the power to deal with an abuse of process by stay of proceedings or reinstatement may be described as adjectival.

70 As was noted in Parsons v Martin (supra) at 401, this distinction between substantive and adjectival powers was adverted to by Wickham J in Sparks v Bellotti [1981] WAR 65 at 68 - 69, where his Honour said:

"The jurisdiction of a court to hear and determine in respect to subject matter, parties and territorial limits, and in respect to the substantive law to be applied, is to be distinguished from the manner in which that jurisdiction may be exercised ... Where, however, the enabling statute or rules or regulations lawfully made thereunder, is silent as to adjectival or procedural matters - that is the manner of exercise by the court of its duties and powers - then the court has an unexpressed power to control its procedures."

71 I acknowledge of course, as did the Full Federal Court in Parsons v Martin, that whether a matter is truly adjectival may not always be capable of ready determination, and my view about this matter as a tool in the construction of s22(1) in the light of s22A is by no means exclusively determinative of my decision concerning it, which rests in the main on the text of the sections, the nature and function of the Tribunal, and the purpose and objects of the Act.

72 As to that part of s22A that requires the Tribunal to dismiss an appeal if it is satisfied that the appeal is frivolous or vexatious, that requirement was inserted into the Act by amending Act No 69 of 2004. That was the same Act that substituted a new s28 of the Act dealing with costs. In fact those two sections, and a section dealing with "Validation and doubts avoidance", as to previous costs orders of the Tribunal, were the only sections in the amending Act.

73 Act No 69 of 2004 was a legislative response to the decision of Underwood J (as he then was) in Hardman v Ward [2004] TASSC 74, which applied the decision of the High Court in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 to s28 of the Act.

74 The second reading speech in relation to the amending Act on 26 November 2004 was as follows:

"This bill is presented to address a decision made by the Supreme Court of Tasmania earlier this year. Up until that decision was handed down, the Resource Management and Planning Appeal Tribunal generally based its costs decisions on the principle that parties should bear their own costs. That was the tribunal's, and indeed most other parties' understanding of the intent of the existing legislation. However, earlier this year, the Tasmanian Supreme Court found that the tribunal was bound by a decision of the High Court - namely Oshlack v Richmond River Council.

In this judgment, the High Court found that, unless there was a clear intention in the statute to the contrary, the starting point for consideration of costs by lower courts and tribunals was that the loser pays. This decision of the Supreme Court means that unless there is a change to the Resource Management and Planning Appeal Tribunal Act, the tribunal will be required to consider costs applications from the starting point that the loser pays.

Mr President, the Government does not support this approach in the tribunal. The Government believes that the starting point should be that parties should meet their own costs. It is also believed that this was the intention of the Parliament when the original bill was considered in 1993.

In August the minister announced that legislation would be developed to deal with the recent decision of the Supreme Court and this bill delivers on that commitment. However, while the primary purpose of this bill is to make clear that, in matters before the tribunal, parties will ordinarily bear their own costs, at the same time there must be clear disincentives against inappropriate behaviour. In this context, inappropriate behaviour would include vexatious litigation, time wasting and non-compliance with tribunal requirements, et cetera.

There is also a need for the tribunal to be able to consider particular circumstances where it is fair and reasonable to order that one party pays the costs of another party. To deal with these matters, the bill both identifies a number of specific behaviours which are considered to be inappropriate as well as providing a general discretion to the tribunal to take account of any other matters relevant to its decision.

The net result of the passing of this bill, Mr President, will be an appropriate balance between, on the one hand encouraging public participation in planning and environment matters and, on the other, discouraging frivolous and vexatious legal action against well-thought-out development proposals and inappropriate behaviour in an appeal."

75 The mandating of the dismissal of frivolous or vexatious appeals by s22A of the Act is not therefore, in my view, a relevant consideration in construing s22(1) or in discerning any implied powers flowing from that section and the Act generally. It is not an enabling provision at all, it is a legislative requirement that the Tribunal act in a certain way in given circumstances.

76 It will be clear from all that I have said that I am of the view that the Tribunal erred in holding that it had no express and/or implied power to hear and determine the appellant's application to "set aside the notice of withdrawal" and in holding that "The Tribunal's role as defined by the statutory provisions which confer powers has ended. They cannot be resurrected."

77 The central argument of counsel for the State that the right of withdrawal of an appeal is paramount and unconstrained was a matter to be determined by the Tribunal. It was for the Tribunal to determine whether the purported withdrawal was of legal effect and if so whether it was capable of being set aside or ignored if it amounted to an abuse of process.

78 In my judgment, the appeal to this Court should be upheld as to grounds 2.1(a), (b) and (c).

79 Allowing the appeal on those three grounds does not involve my reaching a concluded view on this appeal as to the central argument made by counsel for the State as to the paramountcy of the right of withdrawal conferred by s13(6) of the Act, beyond finding that the existence of express and/or implied power in the Tribunal to consider the legal effect of the State's withdrawal of its appeal does not involve the Tribunal, or this Court, in considering the justice, propriety or utility of the statutory right to withdraw in a way that would offend the principle in Nicholas v R (supra).

80 However, as I observed earlier in these reasons, and as is acknowledged by counsel for the appellant and the respondent alike, the Tribunal did not make any findings or draw any inferences as to the motivation of the State in withdrawing the appeal, and there is no evidence as to that matter before me. I am not confidently able to draw any inference against the State in that regard on such materials as are before me.

81 In such circumstances I am of the view that it would not be appropriate for me to go beyond upholding the appeal on those first three grounds and remitting the matter to the Tribunal.

83 The first is that the remaining grounds of appeal each involve the question of whether the purported withdrawal of the appeal was, in view of the order of Blow CJ, of legal effect and/or an abuse of process, and that question may well in turn depend upon the State's motivation for abandoning the appeal. If the State was not seeking the benefit of the permit adjudged by this Court to be, in effect, partially invalid, then the purported withdrawal may be unobjectionable and effective.

84 In Gilham v Browning (supra), May LJ held at 691 that a County Court had power to strike out as an abuse of process, a notice of discontinuance filed, without the need for leave to do so, saying:

"It was, I think, seeking to use the court processes to obtain a collateral advantage which it would be unjust for the Brownings to obtain, ie to escape by the side door from the first action where their counterclaim was evidently hopeless in order to start a new action where the evidential problems would not arise and this in circumstances where a long overdue date for trial of the first action was fixed and imminent. If it were necessary to characterise the abuse adjectivally, I should say that it was plain."

85 There was no inquiry into such considerations made by the Tribunal in this case and an inquiry into them is not one that I should undertake on this appeal, even assuming I were able.

86 The second reason for the view I take is that if I were to now embark on some process of assessment of what the Tribunal might have held had it proceeded to consider the relevant factual material, I would, in effect, be offering an advisory opinion on the arguments made by the parties.

87 There is a difference, to my mind, between saying, on the one hand, that the Tribunal erred and it should have gone on to consider the facts and apply the law, and saying, on the other hand, that the Tribunal erred, and if it had gone on to consider the facts and apply the law it would, or should, have reached a particular conclusion. The former is surely an exercise of appellate jurisdiction, but in my view, the latter is an antecedent hypothetical exercise and the result would be in the nature of an advisory opinion.

88 Even were it possible for me to be told, for example, by counsel for the State, in a way that did not require evidence including the production of documents and the calling and cross-examination of witnesses, that the State was indeed motivated in withdrawing the appeal by a desire to gain the benefit of the permit as it stood before the appeal to, and subsequent order of this Court, it would remain to my mind inappropriate for me to exercise the jurisdiction that the Tribunal mistakenly held that it did not have, much less to exercise prematurely and potentially unnecessarily, the supervisory jurisdiction of this Court to prevent an abuse of the Tribunal's processes, assuming that it was appropriate to do so in the light of the submissions about that made by counsel for the State. Such jurisdiction was identified by Green CJ in Re a Medical Practitioner [1993] TASSC 138; (1993) 2 Tas R 90 at 93, and Crawford and Slicer JJ in Adams v Law Society of Tasmania [2003] TASSC 31, although I note in deference to the arguments of counsel for the State, that in both those cases such jurisdiction was formally invoked.

89 Counsel for the appellant submitted in his written outline:

"The literal application of section 13(6) produces manifest unfairness to the appellant. It brings the administration of the Tribunal procedures into disrepute. It enables the State to escape the consequences of the order made by this Court. It permits the State to obtain a collateral advantage despite the res judicata."

90 As I have already alluded, I am not able to make the findings of fact that would be necessary to make out that submission.

91 Counsel concluded his written submissions by saying:

"The matter must either be remitted to the Tribunal to make a finding as to abuse of process or, if that is the conclusion of this court, the impugned decision should simply be set aside and once again the matter should be remitted to the Tribunal."

92 As will be seen from what I have said, I incline to the former of those two courses.

93 The Tribunal should, in my view, exercise its undoubted jurisdiction to hear and determine the appellant's application to it, and if either party is aggrieved on a question of law it can, of course, appeal to this Court pursuant to s25 of the Act.

94 I also observe that if it is correct, in the circumstances of this case, as submitted by counsel for the appellant, that the power conferred in favour of an appellant pursuant to s13(6) of the Act is incapable of being exercised where, as here, the parties and the Tribunal are bound by an order of this Court to embark upon a reconsideration in accordance with a direction that the Tribunal must vary the permit conditions, and that compliance with the order is not a matter of personal choice, then any attempt by the State to rely on the original permit would be doubtless met with civil enforcement proceedings in the Tribunal pursuant to s64 of the Act, or proceedings in this Court for declaratory and injunctive relief.

95 Grounds 2.1(a), (b) and (c) are upheld, the appeal is allowed and the decision of the Tribunal is set aside. The matter is remitted to the Tribunal with a direction that it hear and determine the appellant's application to set aside the State's purported withdrawal of appeal 151/12P in accordance with law.

96 I will hear counsel as to any further or consequential orders, including as to the alternatives for the disposition of the remaining grounds of the notice of appeal.