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Clarence City Council v Howlin

Clarence City Council v Howlin

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Case Copied 23 April 2010 62 min read

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[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] TASFC 2
Decision Date: 23 April 2010

CaseChat Overview and Summary

Clarence City Council sought to appeal a decision of the Supreme Court of Tasmania, which had ordered the Council to pay the costs of a non-party, Mr Howlin, following an earlier judgment in a dispute between two landowners concerning whether a particular parcel of land constituted a public highway. The Council had been involved in the original proceedings, having been joined as a party by one of the landowners, and had participated in the trial. Following the judgment in favour of Mr Howlin, the Council sought to challenge the trial judge's findings and conclusions, and Mr Howlin subsequently applied for and was awarded costs against the Council as a non-party.

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.

Orders