New South Wales Court of Appeal CITATION: B & L LININGS PTY LIMITED v CHIEF COMMISSIONER OF STATE REVENUE [2009] NSWCA 55 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 13 March 2009 JUDGMENT DATE: 13 March 2009 JUDGMENT OF: Allsop P; Giles JA; Basten JA EX TEMPORE JUDGMENT DATE: 13 March 2009 DECISION: The appeal be allowed. That part of the decision of the appeal panel in refusing to award costs except to the extent set out in orders 1, 2 and 3 of the decision of 27 March 2008 be set aside and be remitted to the Appeal Panel for reconsideration and decision according to law. The respondent pay the appellant's costs of the appeal. Such coses to include costs of the application for leave to appeal. CATCHWORDS: ADMINISTRATIVE LAW - adminsitrative tribunals - Administrative Decisions Tribunal (NSW) - s 88 Administrative Decisions Tribunal Act 1997 (NSW) - costs application - "special circumstances" - appeal allowed - reconsideration by Appeal Panel to occur after change in the relevant legislation. LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 (NSW) CATEGORY: Principal judgment Civic Workers Plus Pty Limited v Hill [2001] VSCA 61; (2001) 1 VR 640 CASES CITED: Galvin v Forest Commission of Victoria [1939] VR 284 Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413 TEXTS CITED: D C Pearce and R S Geddes, Statutory Interpretation in Australia, 6th Edition (2006) Butterworths B & L LININGS PTY LIMITED (First Appellant) PARTIES: L & B LININGS PTY LIMITED (Second Appellant) CHIEF COMMISSIONER OF STATE REVENUE (Respondent) FILE NUMBER(S): CA 040131/08 COUNSEL: Mr M Cashion SC, Mr T Thawley (Appellant) Mr A Robertson SC, Mr I Latham (Respondent) SOLICITORS: Kemp Strang (First & Second Appellant) Crown Solicitor's Office (Respondent) LOWER COURT JURISDICTION: Administrative Decisions Tribunal, Appeal Panel LOWER COURT FILE NUMBER(S): 059044 LOWER COURT JUDICIAL OFFICER: M Chesterman ADCJ (Deputy President), M Hole, C Bennett LOWER COURT DATE OF DECISION: 27 March 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 040131/08 ALLSOP P GILES JA BASTEN JA 13 March 2009 B & L LININGS PTY LIMITED v CHIEF COMMISSIONER OF STATE REVENUE Judgment 1 THE COURT: The parties are substantially agreed that error occurred in the disposition of a costs application by the Appeal Panel, at least in relation to the construction of the phrase "special circumstances" in the form of s 88 (Administrative Decisions Tribunal Act 1997 (NSW) as it existed at the time the Appeal Panel heard the matter. For that reason alone the Court is satisfied that the appeal should be allowed and the matter remitted to the Appeal Panel for reconsideration. 2 The parties have proposed alternative forms of orders which describe the issue or issues for consideration, but that is not something that need be or should be done by us today because the parties are agreed that the old s 88 will not apply to any reconsideration of the matter by the Appeal Panel. We agree with that approach and would refer generally to such cases as Civic Workers Plus Pty Limited v Hill [2000] VSCA 61; (2001) 1 VR 640 at 32, Galvin v The Forests Commission of Victoria [1939] VR 284 at 297-298, and Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413 at 415, and see generally D C Pearce and R S Geddes, Statutory Interpretation in Australia, 6th Edition (2006) Butterworths at paras [10.20]-[10.23]. 3 As to the question of costs, the court is of the view that the respondent should pay the appellant's costs of the appeal. It was necessary today to resolve disputes about the form of the orders notwithstanding the measure of agreement but not complete agreement reached in the correspondence handed to the court by the parties that passed between the parties and their solicitors in early March. [The parties were heard.] 4 The Court is of the view that the existing preliminary reasons can be adopted to explain the orders of the Court with the simple additional comment that, as can be seen from the debate with counsel, recorded on the transcript, the Court is not of the view that any further limitation should be made on the task of the appeal panel in the light of the new section s 88. 5 Therefore the orders of the Court are: 1. The appeal be allowed. 2. That part of the decision of the appeal panel in refusing to award costs except to the extent set out in orders 1, 2 and 3 of the decision of 10 December 2007 be set aside and be remitted to the Appeal Panel for reconsideration and decision according to law. 3. The respondent pay the appellant's cost of the appeal. Such costs to include costs of the application for leave to appeal. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 040131/08 ALLSOP P GILES JA BASTEN JA 31 MARCH 2009 B & L LININGS PTY LIMITED v CHIEF COMMISSIONER OF STATE REVENUE JUDGMENT 1 THE COURT: On 13 March 2009 the Court adopted preliminary reasons which recorded substantial agreement between the parties as to error in the disposition of a costs application by the Appeal Panel of the Administrative Appeals Tribunal. 2 Attention has been drawn to an erroneous reference to the date of the decision of the Appeal Panel as 10 December 2007. Clearly, the date of the Appeal Panel's decision was 27 March 2008. 3 Pursuant to the provisions of Uniform Civil Procedure Rule 36.17 Order 2 of this Court is now corrected by deleting "10 December 2007" and inserting in lieu "28 March 2008". ********** 08/04/2009 - Add additional judgment - Paragraph(s) 1-5 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.