Geason, Greg --- "Tribunal life" [2016] PrecedentAULA 60; (2016) 136 Precedent 14

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TRIBUNAL LIFE

By Gregory Geason

This article details my experiences on the Resource Management and Planning Appeals Tribunal (RMPAT) in Tasmania, and makes some observations about tribunals in general. It covers my participation and observations as chair of a tribunal and the person primarily responsible for the performance of the statutory functions vested in it.^[1]

THE RMPAT

The RMPAT exists to regulate planning, development and resource management, involving projects and developments worth millions of dollars. This means that parties are typically legally represented when they appear, not common in all tribunals, and positively discouraged in some. It also means that there is a particular emphasis on expert evidence, a fact which in turn influences the composition of the tribunal because the governing legislation requires members to be chosen on the basis of their expertise in matters pertinent to the tribunal’s jurisdiction. This involves having a pool of expert part-time members from which we choose a panel that will bring expertise in the actual area which is the subject of an appeal. This assists in understanding technical evidence and in the engagement between tribunal and witnesses at hearings.

The volume of expert evidence in tribunal hearings is substantial and comprises most of the evidence led at hearing. The recent implementation of procedures to require expert conferences in all matters and the preparation of agreed statements between experts has facilitated the understanding of evidence and streamlined its introduction into evidence. At the very least, it avoids duplication of evidence on matters which are not contentious. With tribunal-led conferences of experts and provision for concurrent evidence, the tribunal has sufficient and useful strategies for managing the reception and use of expert evidence.

The procedural approaches which apply in the RMPAT are similar to those in most tribunals, characterised by an obligation to afford parties procedural fairness, and a duty to reach the correct or preferable decision efficiently and economically.^[2]

The RMPAT consists of a permanent chair, who is legally qualified, supported by an alternative chair, and members appointed as part-time members for their expertise, as noted above. The RMPAT does not have community members and the enabling Act makes no provision for them. I perceive no controversy in that respect as I expect that those using the tribunal would be concerned to ensure that matters are determined on the basis of an assessment of the evidence by those experienced in making judgments about it. The assumption is that the relevant planning instrument and legislation reflects the public interest without the need for a further ‘overlay’ of such interest at hearing. I may be underestimating the contribution of community members in tribunals. But there is no remedial or ‘therapeutic’ component to our work and my view is that community members have a place in tribunals which operate in that context but not in ours.^[3].

The RMPAT conducts its hearings ‘de novo’. As such it sits as the original decision-maker and exercises all the powers available to the authority from which the appeal is brought. Though parties sometimes ‘plead’ an aldermanic or ministerial failure to have regard to an issue, in a de novo setting the need to expose error in order to bring an appeal does not exist, and the fact of error will not assist in making the case for a particular outcome.^[4]

Under our legislation, an appeal on planning matters is determined on the basis of the planning instrument in force at the time the development application was lodged. As a result, it is not out of the question for the RMPAT to be asked to approve a development which by reason of changes to the applicable planning scheme have been discouraged or even prohibited.^[5]

WHY TRIBUNALS?

The rapid growth in tribunals can be attributed to the need for efficient resolution of disputes. Sometimes their creation serves the political imperative of appearing to act decisively to deal with particular problems or specific issues of community concern, when pointing to the court system as an avenue for remedy will not do.^[6] The efficient resolution of disputes is an objective which is well served by an approach which requires less formality and more specialisation in decision makers exercising powers of review. The former characteristic enhances accessibility, and the latter the skill and expertise which can be focused on the matters in issue.

The benefit of a less formal approach

This less structured procedure also suits an approach which is more inquisitorial in nature than that adopted in the traditional courts. Though creatures of statute and therefore vested with specified and limited jurisdiction, tribunals enjoy much greater procedural freedom than courts. They enjoy a broader inquisitorial function unconstrained by the parties’ own assessment of the matters in dispute and are free to adopt a procedure which avoids the trappings and limits of adversarial proceedings. This procedural freedom, cradled within an obligation to afford natural justice, empowers tribunals to inquire, identify relevant matters, and go beyond the issues identified by the parties to the dispute.

Courts, despite having an inherent jurisdiction which exceeds any statutory grant of power applying to tribunals, are constrained by more restricted procedural obligations and an approach which affords the parties the right to determine the matters in issue, with the court adjudicating on those matters and those matters only.

There is another practical advantage in tribunal processes which is attractive to parties and their representatives. Matters adjudicated in tribunals are typically less likely to turn on argument about compliance with procedural rules. It is a very simple thing but it avoids every litigator’s fear that they have fallen into a breach of some obscure rule of court, to the detriment of their case and/or client. Tribunals are not hostage to form, or at least not slavish adherence to form. On the contrary, tribunal arrangements typically allow for a bespoke approach to procedure based upon the jurisdictional characteristics of the tribunal’s work. The result is that the focus is squarely on the matter in issue and not on the correctness or otherwise of the form of action or compliance with court rules. That is not to say that tribunals operate in a vacuum of procedural rules. Implicit in the obligation to afford a party natural justice is an obligation to make directions which require parties to engage properly and be heard. Rules are therefore necessary to ensure that that occurs. What is avoided, however, are the sometimes arid arguments relating to whether matters should be commenced by writ or application, or whether it is to be heard in chambers or court. This is likely to accord more closely with community expectations attaching to the resolution of disputes. ‘Cutting to the chase’ in this way is a worthwhile objective and the simplified arrangements attaching to tribunals seem more likely to produce effective resolution much earlier.

The RMPAT has achieved balance between a laissez-faire approach and an inflexible one by adopting the barest of formal requirements for lodging an appeal, and conducting an early directions hearing where deficiencies are explored, exposed and cured before anyone embarks upon preparation of their case. This requires attendance at the tribunal, but that would be necessary anyway, and employing skilled staff who can assist parties has worked to avoid unfairness in the framing of cases, to appellant or respondent. We have also introduced a direction requiring the early preparation of a statement of facts and contentions by the decision-maker, which serves as a guide to the legislative provisions in issue and the facts relied upon in making the appealed decision. This direction is an extremely useful document, whether for mediation or hearing. If there are unrepresented parties, it provides a neat summary of the issues. It also facilitates the taking of advice if a lawyer is engaged.

Speedy resolution, mediation and relevant expertise

In very simple terms, the obligation upon a tribunal in resolving disputes is to do it quickly, do it properly, and get it right.^[7] The fulfilment of that obligation can be an onerous one. In the RMPAT, the statute directs that a written decision is to be delivered within 90 days of the appeal against the challenged decision being lodged. The tribunal takes appeals under a number of Acts,^[8] from decisions of local government, the Director of Building Control, the Environment Protection Authority, and the Minister responsible for fisheries management. Upon filing an appeal, a directions hearing will be conducted and in turn a mediation will follow in most appeals. Mediation is not compulsory, but occurs in most cases. Allowing for mediation, the preparation and exchange of evidence, then evidence in reply, conferences of experts, and a hearing, there is often only a very short time within which to deliver reasons. Review is undertaken by the Supreme Court, which exercises a supervisory function. Appeals from tribunals are limited to questions of law. It seems like the matters which amount to an error of law is an ever-growing class.^[9] This gives rise to the tension between achieving efficiency and speed while ‘getting it right’, of which Alan Wilson speaks so eloquently.^[10]

The RMPAT sits as a panel of two or three. Typically, I will sit with two other members chosen for their expertise, as determined by reference to the issues raised in the appeal. These may be town planning considerations, heritage issues, architectural or engineering questions. Mining appeals may raise issues about the management and protection of flora and fauna. That expertise is invaluable to the RMPAT in making judgments about competing expert evidence and in questioning witnesses during the course of their evidence. In my experience, it is the combination of skills represented by the panel that keeps the process focused. It is for the legal member to identify relevant considerations, identify and dispose of the irrelevant ones, identify and interpret the statutory criteria applicable in the particular case and guide the reception of evidence by reference to that framework. It is for the expert members to identify the particular elements of the evidence that address the practical considerations enlivened in the case, whether by reason of the characteristics of the particular development site, or the broader developmental context.

At the conclusion of the hearing, the RMPAT will confer to discuss the evidence. If it has not already done so, it will visit the site of the development application. In that respect it will sometimes commence the hearing on-site and each party will have an opportunity to point out the relevance of their evidence. Site visits have produced their own issues on occasions. The greatest ‘risk’ to a fair process has proved to be the placement of notes at various points on site seeking to reiterate an aspect of a party’s case or, worse, pointing out what an unreasonable so-and-so the neighbour really is. In reality, most of the cases involving ‘neighbour versus neighbour’ are resolved at the mediation the tribunal conducts at a suitably early stage in the appeal process. Parties can elect not to mediate, though this is rare. The enabling Act requires the tribunal to consider whether the appeal could be settled ‘expeditiously’ by mediation,^[11] and empowers the tribunal to direct mediation to occur. There are only a few cases where mediation is unlikely to facilitate the expeditious resolution of a matter, such that it is pointless to try, and these have been major matters like mines in world heritage areas, or demolition applications involving significant or heritage-listed buildings. In such cases, there is also a public interest in a hearing of the issues in the open, perhaps also rendering mediated resolution an inappropriate course.

Having considered the evidence, if the tribunal determines that matters that are relevant to resolution have not been addressed or adequately addressed by the parties, it will direct the parties to provide that evidence and afford the opposing parties an opportunity to reply to it. If the tribunal is to reach the correct or preferable decision it cannot ignore the matter, or leave it to the parties to decide what will be placed before it. This might occur, for example, where there is insufficient evidence for the tribunal to make a judgment about an important matter. Sometimes the paucity of evidence going to an issue is not exposed until after hearing and when deliberations are being undertaken. I can think of one case when geotechnical evidence about land slip risk seemed thorough and sufficient until we visited the site a second time after heavy rain. Clearly, the obligation to afford natural justice requires that the tribunal affords the parties an opportunity to deal with that sort of issue. In tribunal proceedings, remarks like ‘if it’s not pleaded I’m not touching it’ will not be heard from the presiding member. That sort of remark belongs in a court where the parties frame the issues by their pleadings.^[12] The ability of tribunals to consider matters that have not been pleaded, and pursue the correct and preferable decision in the matter, undeterred by the way a party has chosen to put its case, reflects an important difference of function and approach between tribunals and courts.^[13]

In my experience, the expertise of members is fundamental to the identification of evidentiary deficiencies. Of course, it is not an open-ended exercise. It is not the function of the tribunal to find a way through the statutory maze in order to procure a particular result.

Once the evidence is complete, a draft decision is produced which takes account of collective views, which is circulated to members for comment and correction. The panel meets to discuss issues, make revisions and then issue a settled version to the parties. Sometimes views change, or at least develop, during the decision-writing process. But there is only a limited time for reflection due to the statutory timeframe that applies. If more time is needed, the RMPAT is required to seek the consent of the parties in order to have that time. This is an unsatisfactory arrangement. There is an argument for affording greater flexibility around time limits for the initial decision-maker as one way of enhancing the prospect of avoiding error. Typically, there is little time for mature reflection, or even a revision of the text.

CONCLUSION

Each appeal involves a balancing of the competing interests of parties, and the competing claims of their counsel. Each member of the RMPAT panel has a function to perform in the execution of those obligations. Each, in turn, makes a contribution to the final decision based on their area of expertise. There are tensions between the performance of the tribunal’s legal obligations, the statutory framework, and the duty to reach the correct or preferable decision. But, overall, the RMPAT, with its flexibility of operation and broad discretion to regulate its processes, is well placed to adjudicate upon the matters which come before it.

Gregory Geason is the Chairman of the Resource Management & Planning Appeal Tribunal, Tasmania, and a member of the national executive of the Council of Australasian Tribunals. He is Chairman of the Parole Board of Tasmania. He is a past president of the Law Society of Tasmania.

EMAIL: [e-mail].

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^[1] For those interested in something more scholarly I commend Creyke, McMillan & Smyth, Control of Government Action, 4th Edition, 2015, Lexis Nexis Butterworths. For an overview, I commend Garry Downes, ‘Tribunals in Australia: Their roles and responsibilities’ [2004] ALRC Ref Jl 2; (2004) 84 Australian Law Reform Commission Reform Journal 7. The Hon Justice Garry Downes AM is a judge of the Federal Court of Australia and the President of the Administrative Appeals Tribunal. His article provides a discussion of the structure and function of tribunals in Australia.

^[2] For the statutory framework within which the RMPAT operates, see the Resource Management & Planning Appeal Tribunal Act 1993 (Tas), s16.

^[3] For a useful discussion of the role of community members on tribunals, see Dr Kylie McShane, ‘Why does the public trust the reasonable ordinary person? The purpose of a community member in a tribunal framework’, delivered to the Council of Australasian Tribunals National conference in June 2016.

^[4] This does not exclude the possibility of a more fundamental jurisdictional error which vitiates the permit; in that circumstance the permit appealed will be invalid.

^[5] Consider in this context Coty (England) Pty Ltd v Sydney CC [1957] 2 LGRA 117; Baptist Union of Queensland v Brisbane City Council [2002] QPEC 41; [2003] QPLR 61.

^[6] For example, the Weathertight Homes Tribunal in New Zealand.

^[7] This is not the occasion for a discussion of the tensions between the obligation to carry out the adjudication efficiently and within a statutory timeframe and the obligation to reach the correct or preferable decision. There is, as is noted by Alan Wilson QC, a tension between those obligations as noted by Alan Wilson QC in his paper, ‘Tension and the obligations of Tribunal Members’, delivered to the Council of Australasian Tribunals National Conference, Hobart, 9 June 2016.

^[8] Including, but not limited to: Agricultural and Veterinary Chemicals (Control of Use) Act 1995; Building Act 2000; Building Regulations 2004; Environmental Management and Pollution Control Act 1994; Historic Cultural Heritage Act 1995; Inland Fisheries Act 1995; Land Use Planning and Approvals Act 1993; Local Government Act 1993; National Parks and Reserves Management Act 2002; Public Health Act 1997; Strata Titles Act 1998; and the Water Management Act 1999.

^[9] The injunction directed to reviewing courts contained in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 is an important one; as to the growing class of ‘error’, see for example, Willis v State of Queensland [2016] QSC 80 – a failure to reveal ‘active intellectual engagement’ with the mandatory requirements for a decision is an error of law. No active intellectual engagement with the mandatory criteria was exhibited in a tribunal decision resulting in its being quashed.

^[10] See above note 5.

^[11] Resource Management & Planning Tribunal Act 1993 (Tas), s16A.

^[12] See ‘Keeping the AAT from Becoming a Court’, The Hon. Justice Duncan Kerr Chev LH

AIAL (NSW), seminar, Sydney, 27 August 2013, at http://www.aat.gov.au/about-the-aat/engagement/speeches-and-papers/the-honourable-justice-duncan-kerr-chev-lh-presid/keeping-the-aat-from-becoming-a-court.

^[13] Of course, tribunals are typically granting new rights necessitating inquiry; courts are arbitrating on existing rights.