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Perth, WA, 6000
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Planning and Environment Law Firm Perth. 

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Costs in the State Administrative Tribunal

Glen

Generally, parties to proceedings in the State Administrative Tribunal (Tribunal) pay their own costs, with the notable exception of compensation matters, which were previously the jurisdiction of the Compensation Court. However, section 87 of the State Administrative Tribunal Act 2004 (WA) gives the Tribunal the power to order one party to pay another party’s costs in particular circumstances. 

In recent months, the Tribunal has published three noteworthy decisions regarding costs:

1.    Ransberg Pty Ltd v City of Bayswater [2016] WASAT 43 (S) (Ransberg)
2.    Western Australian Planning Commission v Graham [2013] WASAT 112 (S) (Graham)
3.    Spartalis v City of Stirling [2017] WASAT 125 (Spartalis)

Ransberg

The Applicant, Ransberg Pty Ltd, sought an order for costs in relation to earlier proceedings regarding the City of Bayswater’s (City) refusal of an application for development approval for a concrete batching plant.

The Applicant submitted that it should be entitled to indemnity costs of $248,798 on the basis that the City:

•    did not genuinely seek to deal with the development application on its merits;
•    conducted itself unreasonably during the proceedings in order to prolong the matter and increase costs to the Applicant; and
•    maintained a position throughout the proceedings that was without merit. 

The Tribunal determined that the City had refused the development application despite extensive planning, legal and environmental advice that indicated its suitability for approval. Consequently, the Tribunal held that the City had failed to genuinely attempt to make a decision on the merits of the application and ordered the City to pay the Applicant costs of $112,772. 

Graham

The Respondent, Graham, was the owner of four lots subject to a partially invalid Taking Order made by the Applicant, the Western Australian Planning Commission (WAPC).  

The Applicant made an application to the Tribunal requesting a determination of the quantum of compensation (Application). On appeal by the Respondent the application was, for the most part, struck out by the Supreme Court of Western Australia, which held that the Tribunal’s jurisdiction had not been enlivened as no offer of compensation had been made by the Applicant. The matter was referred back to the Tribunal to determine costs. 

The Respondent submitted that the Applicant’s position was without foundation or merit and that as such, the Applicant should bear the costs associated with defending the Application. 

The Applicant submitted that it was appropriate for them to bring the Application and that each party should bear its own costs. 

The Tribunal found that the Applicant’s claim was not wholly without foundation and that the dispute was genuine. There was no evidence that the Applicant’s conduct was unreasonable or deliberately vexatious. The Tribunal ordered each party to bear their own costs. It is necessary to note that compensation matters are not within the usual Tribunal rule which requires each party to bear its own costs. 
 

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Spartalis

Retrospective approval was sought for development works carried out by Spartalis (Applicant). The City of Stirling’s (Respondent) only expert witness was unavailable for the final hearing date. The City did not oppose the hearing date on this ground, nor did they attempt to retain a new expert until a week prior to the hearing. 

Six days prior to the final hearing, the Tribunal received proposed consent orders from the parties on the basis that the Respondent had granted approval for the applications. The orders sought were that the final hearing be vacated, but reserved the Applicant’s right to seek costs. 

The Applicant submitted that the Respondent had:
•    not sought to consider genuinely the development application on its merits; 
•    not sought the advice of an expert town planner; 
•    maintained a position that was without merit; and
•    prolonged the matter which resulted in increased costs to the Applicant. 

The Respondent contended it had genuinely attempted to make a decision on the applications merits. Further, they argued that they had not acted unreasonably, inappropriately or with capricious or vexatious behaviour. 

The Tribunal concluded that the Respondent’s actions in granting approval only 6 days prior to the final hearing demonstrated that the Respondent had either: 
•    only very belatedly genuinely turned its mind to the merits of the outstanding issue; or
•    due to the unavailability of its key witness, arbitrarily decided to grant approval to save costs of retaining an external expert witness. 

In either circumstance the conduct was inappropriate and had contributed to costs being incurred by the Applicant unnecessarily. The Applicant was awarded $20,000.00. 

Comments

To direct a party to bear any or all of the other party’s costs the Tribunal must be satisfied by more than an unfavourable hearing outcome. Rather, there must be clear evidence to suggest, in the case of a respondent party, that it has not genuinely considered proceedings on its merits or has acted vexatiously, so as to unnecessarily increase costs to the other party.  

Further, as illustrated in Ransberg where the SAT awarded only half the amount of costs sought, when the Tribunal exercises their discretion to grant costs it does so somewhat conservatively.
 

GOING PAPERLESS

Glen

The New South Wales Land and Environment Court (NSWLEC) has commenced paperless civil trials for Class 3 resumption compensation cases. The paperless elements comprise of a data projector being connected to the courtroom PC, with all materials being tendered on a USB thumb drive.

The NSWLEC has identified many benefits of conducting paperless trials, being namely:

·       decreasing costs associated with photocopying and preparing hardcopy documents;

·       eliminating the use of paper;

·       conserving printing and filing resources;

·       reducing energy consumption associated with printing and photocopying; and

·       improving access to justice by making all material available to view and understand in the courtroom.

Responses from participants in the trials were overwhelmingly positive. In particular, Justice Moore noted that the electronic format was a benefit to the judgement preparation process.

Five more trials are scheduled to be conducted with paperless material before the end of 2017.

Although not yet fully utilised, we understand that the Sate Administrative Tribunal (SAT) in Western Australia may already have the technological capability to enable paperless trials in its hearing rooms.

 

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Our Experience

Glen McLeod Legal is a paperless office. Like the NSWLEC we have noted numerous benefits in ‘going paperless.’

From an administrative perspective, we have experienced a notable decrease in delays and costs associated with printing and collating documents, and we are enjoying the freedom to work outside the limitations of printing and courier services. This is not to say paper can be avoided altogether, particularly where is it requested by a person who we are dealing with.

Employees have found going paperless has created more office space, has made working offsite more practicable, and allows the firm to cater to employees with flexible work requirements.

All these benefits have flowed on to our clients in meaningful ways, including ease of transferring information, reduced delivery time and costs savings.  

Glen McLeod, ‘Environment and planning issues in Western Australia pre- and post- the 2017 state election’ (2017) 32(4) Australian Environment Review 4, 112.

Connor Fisher

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Glen McLeod, Principal at Glen McLeod Legal, recently contributed an article to the Australian Environment Review. Using the recent Western Australian state election as a reference point the article titled, ‘Environment and planning issues in Western Australia pre- and post- the 2017 state election’, examines three Western Australian Court decisions and their implications. A summary of the article follows.

Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482 turned on whether, under the proper construction of Part IV of the Environmental Protection Act (1986) (EP Act), the Environmental Protection Authority (EPA) had failed to consider a mandatory relevant consideration. The decision at first instance was reversed by the Supreme Court of Appeal which determined there had been no failure on the EPA’s part (Jacob v Save Beeliar Wetlands (Inc) (2016) 50 WAR 313). The observation made was that competing statutory interpretations can arise when complex legislation is the subject of a contemporary, contextual and purposive examination. Though the case did have the practical effect of delaying the project for it to be terminated by the new government.

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The decision for Erujin Pty Ltd v Jacob [2017] WASC 35 was handed down one month before the state election and consisted of a judicial review of the environmental appeals process, focusing primarily on the issue of procedural fairness. Currently, appeals against environmental decisions are reviewed under the EP Act’s ministerial appeals system. The Court found that the system as it applied in this case did not create a breach of procedural fairness. Though a criticism levied at the ministerial appeals system is that it appears to be ‘deliberately designed to minimise the potential for litigation’. 

Wattleup Road Development Co Pty Ltd v State Administrative Tribunal (No 2) [2016] WASC 279 concerned a challenge against the recommendations made by the State Administrative Tribunal (SAT) that a subdivision application within close proximity of the Kwinana Industrial Area and within the Kwinana Buffer Area be refused. The appellant argued that the SAT had taken into account irrelevant considerations. In his judgement, Chaney J concluded that the challenge be dismissed citing health, sustainability and precautionary reasons.

The existing buffer is under pressure from developers and local government due to a shortfall in legislative protection. The former WA Government promised legislative protections for the Kwinana Buffer Area, though it is not clear whether the new government will follow through with these plans.   

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These cases highlight some unusual features of the Western Australian appeals system, particularly the strong involvement of the executive arm of government in environment and planning decision making. The cases discussed in this article will be added to the body of precedent cited in future planning and environmental matters.

VALUE BASED BILLING: AN EFFECTIVE MODEL FOR OUTCOMES BASED LEGAL SERVICES

Connor Fisher

Trends in the legal market identified by the Association of Corporate Counsel (ACC) 2017 report indicate that the most pertinent considerations for a client when engaging a firm are flexible billing methods, knowledge specialisation and individual lawyers, followed by past experience, tailored advice and personal relationships. Law firms that recognise and tailor their services to those needs will not only enjoy a healthy client base but also maintain committed and satisfied staff.

The ACC report also noted that, because of prevailing economic conditions, clients are carefully considering their legal budgets to ensure they are receiving real value for legal services. The overriding sentiment is that client resources are most efficiently and effectively spent by employing a lawyer that has the specialist knowledge to achieve desired outcomes at a fair price. 

The renewed focus on client value has led to a rise in the use of value based billing, otherwise known as fixed fee billing. This value based approach replaces the ‘cost-plus’ method of charging hourly rates and has many flow on benefits for both the client and the law firm.

Our experience has shown that value based billing requires law firms to have a greater understanding of the true cost of providing legal services. A better understanding of these costs enables lawyers to offer the client a transparent and upfront price that is agreed in advance, adequately budgeted for and linked to the performance and completion of specific outcomes. These are all essential elements for building a collaborative and long-lasting client-lawyer relationship.

Agreeing the price before work is commenced allows the law firm to holistically consider and allocate all internal resources required to achieve the stated outcome. This approach provides greater certainty to the client and reassurance that costs will not unexpectedly blow out. Lawyers also benefit from this approach as it provides greater clarity and flexibility in planning and producing the work required without the pressures of billing as many hours as possible. Removing the pressures of time based billing also increases workplace satisfaction by allowing lawyers to focus on achieving the outcome as agreed with the client.

Glen McLeod Legal is a boutique Town Planning and Environment law firm that applies the principles of value based billing. We can be contacted by telephone on (08) 6460 5179 or by email at glen@glenmcleodlegal.com.au.