Canberra Greyhound Racing Club Inc v Planning and Land Authority of the Australian Capital Territory [No 2]

[2018] ACTSC 80

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Canberra Greyhound Racing Club Inc v Planning and Land Authority of the Australian Capital Territory [No 2]

Citation:

[2018] ACTSC 80

Hearing Date:

On the papers.

DecisionDate:

29 March 2018

Before:

Murrell CJ

Decision:

The Authority is to pay the Club’s costs up to and including 28 November 2017.  Thereafter, each party is to pay its own costs.

Catchwords:

.

CIVIL LAW – Practice and Procedure – Costs – Exercise of discretion to award costs – When part is a public authority

Legislation Cited:

Court Procedures Rules 2006 (ACT) s 1721(1)

Cases Cited:

EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92

Latoudis v Casey (1990) 170 CLR 534

Oshlackv Richmond River Council [1998] HCA 11; 193 CLR 72

Parties:

Canberra Greyhound Racing Club Inc (Plaintiff)

Planning and Land Authority of the Australian Capital Territory (Defendant)

Representation:

Counsel

Mr D Gilbertson QC and Dr D Hassall (Plaintiff)

Ms H Younan (Defendant)

Solicitors

Nelson & Co Solicitors (Plaintiff)

ACT Government Solicitor (Defendant)

File Number:

SC 398 of 2017

MURRELL CJ:

The proceedings

1. The Canberra Greyhound Racing Club Inc (the Club) sought an order compelling the Planning and Land Authority of the Australian Capital Territory (the Authority) to grant to the Club a further Crown lease of land at Jerrabomberra (the land) for the purpose of greyhound racing.

1. The Club advanced three principal arguments: that the Authority had a statutory duty to grant a further lease; that the Authority had constructively refused to perform that duty; and that, in its discretion, the Court should issue a writ of mandamus obliging performance of the duty.

1. In relation to the substantive arguments, the Club succeeded. I found that the Authority had refused to exercise an implied statutory duty to make a decision about whether and on what terms a further lease would be granted. The Authority was required to make a decision “as soon as possible” and I found that it could have done so by May/June 2017. From that time, there was a constructive refusal to grant a further lease.

1. However, in the exercise of discretion, I declined to grant relief because I considered that the grant of relief would be futile. From 30 April 2018, greyhound racing will be unlawful in the ACT and the sole purpose of the proposed further lease was to undertake greyhound racing. The Club holds a 50 year lease of the land. Under its existing lease, the Club can pursue greyhound racing until 2027, to the extent that it is lawful to do so.

Chronology of events

1. In October 2016, a Parliamentary Agreement was released publicly. It recorded a commitment to end greyhound racing in the ACT.

1. In March 2017, the ACT Government appointed a consultant to advise about ending greyhound racing by June 2018.

1. On 10 April 2017, the Club applied to the Authority for a further 50 year lease of the land.

1. By late May 2017, a draft surrender of the existing lease and a further lease had been prepared but the Authority put the Club’s application “on hold” because it believed that legislation may be introduced to ban greyhound racing.

1. The Club pressed for a determination of the application.  On 29 September 2017, it formally demanded that the Authority exercise its statutory duty to determine the application within seven days. The Authority failed to do so.

10.  On 11 October 2017, the Club commenced these proceedings.

11.  On 27 October 2017, I made orders for the filing and service of evidence by 24 November 2017 (later extended slightly) and for the filing and service of submissions by 19 January 2018. The matter was listed for hearing on 8 and 9 February 2018.

12.  On 28 November 2017, legislation was passed that made greyhound racing unlawful in the ACT from 30 April 2018.

13.  The proceedings were heard on 8 February 2018 and decided on 23 February 2018.

Submissions on costs

1. The Club submitted that, as it succeeded on all issues except the discretionary issue, the Authority should pay its costs.  Alternatively, it was submitted that the Authority should either pay five-sixths of the Club’s costs, 80 per cent of the Club’s costs, or such other order as would reflect the fact that the Club had succeeded on most of the issues in contention.

1. The Authority noted that it did not contest the facts and accepted that it had deliberately delayed a decision on the application for a further lease.  It submitted that it should be awarded at least 40 per cent of its costs of the proceedings.  Alternatively, the Authority submitted that each party should bear its own costs.

Consideration

1. The costs of proceedings are in the discretion of the Court: Court Procedures Rules 2006 (ACT) s 1721(1).

1. The principles applicable to a discretionary award of costs were summarised in EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 at [9] as follows:

The discretion is broad but is to be exercised judicially.  The fundamental purpose of the discretion is to compensate the successful party, not to punish the unsuccessful party.  The furtherance of the goal of compensation means that, in general, a successful party will obtain an order for costs in its favour (Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [65]-[68]). However, “a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them...” (Hughes v Western Australian Cricket Association (Inc)[1986] FCA 382; (1986) ATPR 40-748 at 48, 136). If apportionment of costs is appropriate, the object is not mathematical precision (Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272) but a result that best reflects the interests of justice in the overall circumstances of the case.

1. The fact that a successful party is a public authority should not deter a court from awarding costs in its favour.  However, it may occasionally mean that a court will see a case as falling within one of the traditional exceptions to the usual order for costs because public authorities have many obligations that have no counterpart in private relationships and breach of such an obligation may invite litigation: Oshlackv Richmond River Council [1998] HCA 11; 193 CLR 72 (Oshlack) at [92]–[94] per McHugh J.

1. A decision to refuse costs to a successful defendant will ordinarily be focused on the defendant’s conduct in relation to the proceedings, including whether the defendant had unreasonably induced the plaintiff into thinking that proceedings could be brought successfully:  Latoudis v Casey (1990) 170 CLR 534, 569–570 per McHugh J.

1. Had these proceedings been decided prior to the passing of legislation banning greyhound racing, the Club would have succeeded on all issues.  Consequently, I consider that the Club should have its costs up to and including 28 November 2017.

1. As it was, the Club succeeded on the substantive issues, albeit not precisely on the bases upon which they were argued.

1. The Authority contested and failed on all substantive issues.  The discretionary issue upon which the Authority succeeded was the subject of very little evidence or argument. 

1. I consider that, from 29 November 2017, each party should pay its own costs.

1. The Authority is to pay the Club’s costs up to and including 28 November 2017.  Thereafter, each party is to pay its own costs.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date: 29 March 2018