[2010] TASFC 2
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Clarence City Council v Howlin [2010] TASFC 2
PARTIES: CLARENCE CITY COUNCIL
v
HOWLIN, Darryl Robert
HOWLIN, Helen Lorraine
FILE NO/S: 279/2009
JUDGMENT
APPEALED FROM: Howlin v Brinckman; Howlin v Clarence City Council
[2009] TASSC 18
DELIVERED ON: 23 April 2010
DELIVERED AT: Hobart
HEARING DATE: 17, 18 November 2009
JUDGMENT OF: Crawford CJ, Tennent and Wood JJ
CATCHWORDS:
Procedure – Courts and judges generally – Judges – Disqualification for interest or bias – Particular relationships or circumstances – Other matters – Apprehension of bias by pre-judgment – Application for costs against non-party following judgment in action – Non-party seeking to challenge findings and conclusions of trial judge.
R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; Livesey v New South Wales Bar Association (1983) 151 CLR 288, applied.
Re JRL; ex parte CJL (1986) 161 CLR 342; Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (Cth) (1999) 74 ALJR 68, 166 ALR 302, considered.
Aust Dig Procedure [13]
Procedure – Costs – Jurisdiction – Persons not parties to proceedings – Proceedings between two land owners concerning whether land of one was a public highway – Application for costs against local council – Discretion of court – Interests of justice – Whether causal connection between non-party and proceedings – Whether exceptional circumstances.
Naomi Marble and Granite Pty Ltd v FAI General Ins Co Ltd (No 2) [1999] 1 Qd R 518; Symphony Group plc v Hodgson [1994] QB 179, [1993] 3 All ER 143; Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406; Knight v FP Special Assets Ltd (1992) 174 CLR 178; O'Neill v De Leo (1993) 2 Tas R 225; Re JJT (1988) 195 CLR 184; Bischof v Adams (1992) 2 VR 198; National Mutual Life Association of Australasia Ltd v Chris Poulson Insurance Agencies Pty Ltd (1998) 8 Tas R 123; Wentworth v Wentworth (1999) 46 NSWLR 300; Re Bonlac Foods Ltd (2001) 37 ACSR 457, applied.
Aust Dig Procedure [551]
REPRESENTATION:
Counsel:
Appellant: S B McElwaine, E Judd
Respondents: In person
Solicitors:
Appellant: S B McElwaine
Respondents: In person
Judgment Number: [2010] TASFC 2
Number of paragraphs: 145
Serial No 2/2010
File No 279/2009
CLARENCE CITY COUNCIL v DARRYL ROBERT HOWLIN and
HELEN LORRAINE HOWLIN
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
TENNENT J
WOOD J
23 April 2010
Orders of the Court
Appeal allowed.
Order that the appellant pay the respondents' taxed costs of the action from 11 December 2005 set aside.
Application of the respondents against the appellant for costs dismissed.
Serial No 2/2010
File No 279/2009
CLARENCE CITY COUNCIL v DARRYL ROBERT HOWLIN and
HELEN LORRAINE HOWLIN
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
23 April 2010
The respondents, Mr and Mrs Howlin, sued…
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CaseChat Overview and Summary
The appeal raised two primary legal issues for determination by the Full Court of the Supreme Court of Tasmania. Firstly, it was necessary to consider whether the trial judge had erred in law by making an order for costs against the Council as a non-party to the original proceedings. Secondly, the Court was required to determine whether there were exceptional circumstances justifying the exercise of the court's discretion to award costs against a non-party, and whether a sufficient causal connection existed between the Council's conduct and the proceedings to warrant such an order.
The Full Court analysed the principles governing the award of costs against non-parties, drawing on established case law. The Court affirmed that such orders are exceptional and require a high degree of justification, focusing on the interests of justice. It was held that the Council's involvement in the original proceedings, including its participation in the trial and its subsequent attempt to challenge the findings, established a sufficient causal connection to the litigation. The Court found that the Council had acted in a manner that warranted the exercise of the court's discretion to award costs against it, as it had actively participated in the proceedings and sought to influence their outcome, thereby justifying the imposition of costs.
The Full Court dismissed the appeal, upholding the trial judge's order for costs against the Clarence City Council.
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