South Sister St. Marys, Tasmania

Forestry Tasmania Costs Application

rmpat rejects application

File NO: A8/05

J133/2006

Costs

Resource Management and Planning Appeal Tribunal

Between

Environmental Defenders Office
Obo J Weston and Others

Appellant

AND

Forestry Tasmania

Respondent

This was an application by the Respondent for an order that its costs for the application be paid by the Applicants

Submissions were made in writing without a hearing

DECISION

Background

The Claims

The first claim

The second claim

The third claim

The fourth claim

The course of proceedings

The law

"In most jurisdictions today, the power to award costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or otherwise on particularly issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor which usually determines whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in RV Gold Coast City Council; ex parte Raysun Pty Ltd (1971) QWN 13, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of roads and drainage plans.

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in the South Easty Queensland Electricity Board v. Australian Telecommunications Commission unreported, Federal Court of Australia, 10 February 1989 where his Honour ordered the respondent to pay 80 per cent of the applicant's tax costs even though his Honour found that both parties had acted reasonably in respect of litigation. But such cases are likely to be rare.

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the court will make no order as to the costs of the proceedings. This approach has been adopted in a large number of cases." (at 624-625)

Dated this 6th day of July, 2006

SJ Cooper
Chairman

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6237 (2, 7, 54, 566)