Legislative Assembly for the ACT: 2010 Week 03 Hansard (Thursday, 18 March 2010) . . Page.. 1103 ..
when clearly there is not a substantive or concrete definition of the term “dodgy”. Yes, the Liberal Party are happy to sort of play with this in the context of a debate where it should not be happening. On that basis, I cannot support the Liberal Party’s proposed amendment.
MR STANHOPE (Ginninderra—Chief Minister, Minister for Transport, Minister for Territory and Municipal Services, Minister for Business and Economic Development, Minister for Land and Property Services, Minister for Aboriginal and Torres Strait Islander Affairs and Minister for the Arts and Heritage) (11.48): The government will not support Mrs Dunne’s amendment. I understand the motivation. I must say that when I saw it, there was just a part of me that certainly—
Mrs Dunne: Oh, come on, Jon. One of these days you are going to agree with one of my amendments.
Mr Rattenbury: Did you take a cold shower afterwards?
MR STANHOPE: Just a part of me immediately identified that circumstances would from time to time I believe potentially justify these sorts of costs. I think they do it. I think there are circumstances I am aware of, once again, anecdotally. Often it is in relation to developer-against-developer appeals.
It is the sort of appeal where one feels there is almost some justification for a more expansive range of potential costs to be awarded against an appellant who is perhaps declared vexatious or not declared vexatious pursuing an issue for essentially commercial reasons or purposes. Anybody who speaks with the development industry or developers separately is aware that some of the appeals that I think the industry would regard as most certainly vexatious are appeals that are pursued by their colleagues. It is at that level that one really does question whether or not the sort of amendment and the sort of costs awards that Mrs Dunne anticipates might be reasonable.
The government’s concern with it, however, is the potential for that full range of costs, including holding costs, in addition to non-litigation costs, being imposed against an unsuccessful appellant. It might be seen, and could reasonably be seen, as of such a quantity or potential that it would essentially inhibit unreasonably anybody from ever appealing for fear of—
Mrs Dunne: The key word is “vexatious”.
MR STANHOPE: The trouble with “well, it will only apply to vexatious” is that there are elements of judgement. In all of these things there is an element of judgement.
Mr Seselja: Not many people get declared vexatious litigants.
MR STANHOPE: Yes, but you only get declared vexatious actually after the process has commenced. There are issues for judgement in relation to what a reasonable balance is.