Legislative Assembly for the ACT: 2002 Week 14 Hansard (12 December) . . Page.. 4486 ..
MR CORBELL (continuing):
The government believes that this amendment successfully addresses the concerns of those who were worried that the introduction of a power to award costs might lead to people feeling unable to bring legitimate applications for a review of planning decisions. It makes it clear that those who are genuine users of the planning appeal system do not have to be concerned about costs being awarded against them. The power to award costs is unlikely to be used often, but it does provide support for the idea that the tribunal must complete planning appeals within 120 days, and discourages misuse of the review process.
In contrast to the proposal from the Liberal Party, the government's proposal is that, only in those circumstances where it is clear that a party to a hearing has sought to obstruct the hearings of the tribunal, can the tribunal decide that this is a matter that warrants awarding costs against that party. The government believes it is only in those circumstances that it can become clear to the tribunal that someone is simply seeking to delay a hearing, and therefore is not a genuine user of the planning appeals process.
MS DUNDAS (9.24): Yes, a number of concerns have been raised in regard to the government's proposal that allows the land and planning division of the tribunal to award costs against a party to an application. In particular, some residents have raised the concern that this would have the practical effect of reducing access to the tribunal because it introduces the threat of financial penalties. It should be remembered that individuals who do not have the resources to hire expensive lawyers, or pay huge legal costs, often bring appeals to the tribunal. This new proposed power to award costs should not be used by unscrupulous developers to intimidate appellants into dropping their appeals.
The right of any person to pursue a legitimate action in a tribunal should not be restricted. Justice should be about making fair and sensible decisions. It should not be about awards to the highest bidder, and so I am glad to see that the Attorney-General has taken these comments on board and proposed the substantive amendment. The amendment clarifies the use of the power to award costs, and includes a clause requiring the tribunal to consider the effects of any payments on the public's right to access the tribunal. I believe that these are fair and reasonable considerations.
However, I will not be supporting Mrs Dunne's amendment to the Attorney's amendment. I believe Mrs Dunne's amendment goes considerably further than the original intention of the bill by including the power to award costs if an application is frivolous or vexatious. Given that many of the appellants who appear before the tribunal do not have legal training or the ability to hire expensive lawyers, as I have said, this could potentially trap unsuspecting appellants. It could also be used to intimidate appellants if developers or lawyers continually try to label objections as frivolous or vexatious.
I do agree with the government's position because it stipulates that parties must directly contravene clear orders of the tribunal before they can be found liable. They cannot be caught unawares by a misunderstanding of the law. I believe Mrs Dunne's amendment is not in the interests of fair and equal access to the tribunal, and so I cannot support it.