B & L LININGS PTY LIMITED v CHIEF COMMISSIONER OF STATE REVENUE

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.

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].

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.]

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.

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.