Agostino Luongo v ACT Planning and Land Authority (No 2)
[2013] ACTSC 233
•22 November 2013
AGOSTINO LUONGO & ORS v ACT PLANNING AND LAND AUTHORITY & ANOR (NO 2) [2013] ACTSC 233 (22 November 2013)
CATCHWORDS
COSTS – Application for judicial review – two applications ‑ plaintiff succeeded in one and failed in the other – two defendants represented by the same lawyers ‑ whether usual order should be made – whether costs should follow the event – disentitling conduct – practical difficulties of two separate costs orders ‑ other considerations
Court Procedures Rules 2006 (ACT), r 1721
Luongo v ACT Planning and Land Authority [2013] ACTSC 206
Oshlack v Richmond River Council (1998) 193 CLR 72
No. SC 373 of 2012
Judge: Katzmann J
Supreme Court of the Australian Capital Territory
Date: 22 November 2013
IN THE SUPREME COURT OF THE )
) No. SC 373 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: AGOSTINO LUONGO
First Plaintiff
GIUSEPPA LUONGO
Second PlaintiffMICHAEL LUONGO
Third PlaintiffREBECCA LUONGO
Fourth Plaintiff
AND:ACT PLANNING AND LAND AUTHORITY
First Defendant
CONSTRUCTION OCCUPATIONS REGISTRAR
Second Defendant
ORDER
Judge: Katzmann J
Date: 22 November 2013
Place: Sydney (via videolink to Canberra)
THE COURT ORDERS THAT:
The defendants pay 30% of the plaintiffs’ costs as agreed or taxed.
REASONS FOR JUDGMENT
The substantive proceedings in this matter concerned a challenge by the plaintiffs to two decisions. The first decision (made by the ACT Planning and Land Authority (“ACTPLA”)) involved the making of a controlled activity order under the Planning and Development Act 2007 (ACT). The second (made by a delegate of the construction occupations registrar (“the registrar”)) was a decision to revoke a certificate of occupancy and use (“certificate of occupancy”) which was issued under the Building Act 2004 (ACT). At the heart of both decisions was an opinion that a residential property owned and developed by the plaintiffs was being used otherwise than as a class 1a (single dwelling) building (as defined in the Building Code of Australia) and contrary to the basis upon which their building approval certificate had been issued. Complicating the decisions, amongst other things, was an assertion that the plaintiffs had carried out unauthorised alterations to the house and a lack of clarity about what those alterations actually were.
On 8 October 2013 I made orders setting aside the controlled activity order and otherwise dismissing the application. I reserved the question of costs (while expressing a preliminary view that costs should follow the event) and invited the parties to make submissions and, if necessary, put on evidence. See Luongo v ACT Planning and Land Authority [2013] ACTSC 206.
The evidence
The plaintiffs filed an affidavit from Sarah May Wise of RSK Legal affirmed on 28 October 2013. Ms Wise is the solicitor with day-to-day carriage of the matter on the plaintiffs’ behalf.
The affidavit annexed correspondence between the parties. The first annexure consists of two emails to ACTPLA from Fiona Luongo-Baker, who is apparently a daughter of Agostino Luongo. The first of these emails is dated 30 October 2012. In it Ms Luongo-Baker requested a meeting to discuss the controlled activity order “and in particular what options [were] available to [them] to resolve this matter”. She also asked for an extension of time regarding the revocation of the certificate of occupancy as the property was tenanted until 10 February 2013. The second email is dated 14 November 2012. It attached an email dated 7 November 2012 from her father and Michael Luongo to Sean Moysey, the person who made the decision in both cases. Michael and Agostino Luongo thanked Mr Moysey for taking the time to speak to them on 2 November 2012, advised that they had met with Jerry Howard from the “MBA” “who gave [them] some insight into how [they] might be able to ensure that [the house] is used in such a manner as to satisfy [him] that it is a class 1(a) building” and indicated what they proposed to do to comply with the controlled activity order “on a without prejudice basis”. They repeated Ms Luongo-Baker’s request for an extension of time in relation to the revocation of the certificate of occupancy.
The third annexure is an email dated 13 November 2012 from Peter Romano, the responsible partner at RSK Legal. Mr Romano noted that he had spoken earlier to Craig Simmons, who is presumably an employee of ACTPLA, and expressed some frustration about determining the meaning of para 16 of the Notice of Decision. Mr Romano sought information from ACTPLA regarding the specific reasons for its decision to issue the controlled activity order and what steps would be necessary to resolve the matter. Mr Romano foreshadowed applying to this Court for a stay of the “purported revocation”.
The fourth annexure is a copy of a letter dated 3 April 2013 from RSK Legal to the ACT Government Solicitor (the defendants’ solicitors). In that letter the plaintiffs’ solicitors sought a meeting with the defendants’ solicitors or advice in writing so that they could understand precisely why the order had been made. The letter noted the steps that had been taken to date in an attempt to alleviate the concerns of the Authority and confirmed that the plaintiffs remained willing to perform further remedial work beyond that which had already been undertaken.
Ms Wise deposed that the defendants did not either directly or through their solicitors provide a proper response to any of the communication outlined above. Tellingly, she stated:
The information received by the Plaintiffs and our office in relation to the various requests for information … were substantially that the Defendants were unable to advise what made the building other than a Class 1(a) residence and what alterations were required to satisfy the Defendants that it was being used as a Class 1(a) residence.
This assertion was uncontradicted. No objection was taken to this paragraph or, indeed, to any part of the affidavit and the defendants filed no evidence of their own.
The competing arguments
The defendants submit that, but for certain practical difficulties, the usual order should be made. The usual order is that costs follow the event, that is, that the unsuccessful party pays the successful party’s costs. The practical difficulties they raise are that the applications to review the two decisions were heard together, that counsel’s fees were rendered without apportionment between the two decisions under review and that further legal expenses would be incurred by all parties to quantify and apportion costs between the two decisions.
The plaintiffs submit that the justice of this case justifies a departure from the general rule in that both defendants should pay their costs although they failed against the registrar. The submission is based on the evidence outlined above. The plaintiffs submit that upon the making of the controlled activity order the plaintiffs made repeated efforts to ascertain from the defendants what it was that they should do in order to comply with the order and avoid the revocation of the certificate. The plaintiffs rely on the correspondence annexed to Ms Wise’s affidavit to contend that that the defendant declined to give any indication of what was necessary to comply with the controlled activity order, and that they were therefore left with little choice but to commence proceedings. They contend that the registrar could have avoided litigation altogether if he told the plaintiffs what needed to be done to comply with the controlled activity order and avoid the revocation of the certificate. They say that, although ACTPLA issued the controlled activity order, “the [registrar] was, in truth, the alter ego of the first defendant”.
What order should be made?
While the usual order is that costs follow the event, there will always be exceptions where the justice of the case requires it. The costs of a proceeding are in the discretion of the court: Court Procedures Rules 2006 (ACT), r 1721. It is a broad discretion, though it must, of course, be exercised judicially “in accordance with established principle and factors directly connected with the litigation”: Oshlack v Richmond River Council (1998) 193 CLR 72 (“Oshlack”) at [65] (McHugh J). The main purpose of an award of costs is to provide a partial indemnity to the successful party for costs that would never have been incurred had it not been for the litigation. As McHugh J pointed out in Oshlack (at [69]) (albeit in dissent) the traditional exceptions to the usual order focus on whether there is any conduct of the successful party which should disentitle it to the benefit of that order. His Honour went on to say:
the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.
This catalogue is not exhaustive, however, as Oshlack, itself, demonstrates. In that case the High Court, by majority, held that the primary judge, who had made no order as to costs, did not err in taking into account the fact that the proceedings had been brought in the public interest. As Gaudron and Gummow JJ observed at [40], there is no absolute rule that, in the absence of disentitling conduct, an unsuccessful party must compensate the successful party. The purpose of the costs jurisdiction is to provide for “the fair allocation of the costs which the parties have necessarily incurred”: Oshlack at [134] (Kirby J).
There is force in the plaintiffs’ submissions in the present case. As I explained in my earlier judgment, there were several problems with the notice of decision. I set aside the controlled activity order primarily because the result of its exercise was uncertain. In substance, this was the essence of the plaintiffs’ complaint all along. What is more, the evidence indicates that the plaintiffs were desirous of complying with the law and willing, indeed eager, to cooperate with the relevant authorities to ensure that they were able to do so. The plaintiffs were entitled to expect greater assistance from the authorities than they received. But the plaintiffs succeeded in their challenge to the controlled activity order. The issue in relation to costs concerns the application to review the registrar’s decision to revoke the certificate of occupancy. The only concerns the plaintiffs expressed about that decision (on the evidence before the Court, at least) related to the time the decision would take effect. On the other hand, the two decisions were not unrelated. The conduct relied upon was the same. The decision maker was the same person.
As the defendants submit, however, the applications to review them involved different issues. While the plaintiffs were uncertain about what they needed to do in order to comply with the controlled activity order, and offered to make minor changes to the building if that would achieve compliance, the defendants point out that in the correspondence the plaintiffs did not suggest any change of occupancy in order for the building to be used as a single dwelling.
There is force in these submissions, too. But I do not think it would be just to make no costs order. This is a case where some of the registrar’s conduct is such as to disentitle it to the benefit of the usual order.
The proceedings were needlessly complicated by the provision of only one set of reasons for the two decisions and the lack of clarity in those reasons. Some of the problems might have been alleviated, had the authorities answered the plaintiffs’ pleas for assistance. While there was no challenge to the revocation order on the basis of uncertainty, the reasons were not easy to understand. Time was taken up at the hearing arguing about what they meant. Furthermore, in his written submissions counsel for the registrar relied on one provision of the Legislation Act 2001 (ACT) to support the revocation order (s 180) and a different one in oral submissions (s 46). This meant that the plaintiffs’ submissions (both written and oral) were largely misdirected. The plaintiffs should not have to shoulder that burden. It follows that, despite his success on the decision to revoke the certificate of occupancy, the registrar should not recover his costs in full.
I take into account the defendants’ submissions about the difficulty of separating the costs according to the decision under review. I therefore accept that for practical reasons only one costs order should be made. Mathematical precision in these matters is invariably difficult, often impossible and in this case also inappropriate. In my view, the defendants should pay 30% of the plaintiffs’ costs as agreed or taxed. I so order.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour Justice Katzmann.
Associate:
Date: 22 November 2013
Counsel for the Applicants: Mr R J Arthur
Solicitor for the Applicants: RSK Legal
Counsel for the Respondents: Mr G C McCarthy
Solicitor for the Respondents: ACT Government Solicitor
Date of hearing: Determined on the papers
Date of judgment: 22 November 2013
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