Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) (No 2)
[2017] ACTCA 1
•17 January 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) (No 2) |
Citation: | [2017] ACTCA 1 |
Hearing Date: | 11 February 2016 |
DecisionDate: | 17 January 2017 |
Before: | Refshauge ACJ |
Decision: | The applicant pay the respondent’s costs. |
Catchwords: | CIVIL LAW – PRACTICE AND PROCEDURE – Costs – applied civil rules – public interest litigation – whether litigation is in the public interest – whether personal undertaking for security for costs created a manifest injustice – right to be heard – costs follow the event – applicant to pay the respondent’s costs – |
Legislation Cited: | Associations Incorporation Act 1991 (ACT) Court Procedures Rules 2006 (ACT), rr 4, 210, 1720, 1721, 5001, 5405(2), Ch 2, Ch 5, Div 2.4.2 |
Cases Cited: | Adam P Brown Male Fashion Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 |
Texts: | G dal Pont, Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) |
Parties: | Concerned Citizens of Canberra Inc (Applicant) Chief Planning Executive (Respondent) |
Representation: | Counsel No appearance (Applicant) Mr P Garrisson SC (Respondent) |
| Solicitors Goodman Law (Applicant) ACT Government Solicitor (Respondent) | |
File Number: | ACTCA 39 of 2014 |
Decision under appeal: | Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Mossop M Date of Decision: 4 July 2014 Case Title: Concerned Citizens of Canberra Inc v Chief Planning Executive (Planning and Land Authority) Citation: [2014] ACTSC 165 |
REFSHAUGE ACJ:
The applicant, Concerned Citizens of Canberra Inc, is an association incorporated under the Associations Incorporation Act 1991 (ACT). The respondent is a body corporate established under s 10 of the Planning and Development Act 2007 (ACT). That is to say, that section creates a body corporate which is the Planning and Land Authority and then provides that the Chief Planning Executive is the authority. Though they were respectively plaintiff and defendant in the proceedings from which the appeal is sought to be taken, I shall continue to refer to the parties as to the role they have taken in these proceedings, namely as applicant and respondent respectively.
In 2012, the applicant challenged in this Court a decision of the respondent to approve a development application for the construction of a mosque in Gungahlin, ACT. That challenge was dismissed in July 2014: Concerned Citizens of Canberra Inc v Chief Planning Executive [2014] ACTSC 165; 205 LGERA 278 (the Third Decision).
The applicant then sought to appeal that decision, but failed to lodge a Notice of Appeal within time. It applied for leave to appeal out-of-time. I dismissed the application on 6 November 2015: Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; 214 LGERA 252 (the Fourth Decision).
In doing so, I said at 289; [287]:
Subject to any contrary submissions, I consider that the applicant should pay the costs of its application and that there be no order as to costs of the Authority’s application.
Both parties filed submissions on costs. It is a matter of much regret that a period of sick leave followed by significant pressure of work in the Supreme Court and this Court has delayed this decision.
In my view, for the reasons set out below, the applicant must be ordered to pay the respondent’s costs.
Course of the Proceedings
In order to understand the applicant’s submissions, it is necessary to determine in some detail the course of these proceedings.
The original proceedings were commenced on 9 August 2012 by Originating Application by the applicant as plaintiff, being at that stage an unincorporated association before it was incorporated. I do not need to consider the procedural problems with that situation, as to which see London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15. By the time the proceedings came to curial attention the association had been incorporated on 13 August 2012. It would appear that the voluntary, unincorporated association which sought the incorporation ceased to have any existence apart from the incorporated association on incorporation: Kepert v West Australian Pearlers’ Association Inc (1926) 38 CLR 507 at 514.
In any event, the incorporated association became the plaintiff.
On 15 February 2013, the Court heard various interlocutory applications, two of which are mentioned in the submissions.
One of the mentioned applications was made by the applicant to join Mr Irwin Ross, then President of the applicant, as a second plaintiff to the proceedings. The other application was made by the defendant for security for costs.
It was submitted by the defendant that the joinder was being sought to circumvent the application for security as to costs, but also it was opposed on the grounds that Mr Ross had no special interest that gave him standing to be a plaintiff and that it was too late to join him to the proceedings.
For reasons set out in its decision, Concerned Citizens of Canberra Inc v Chief Planning Executive (Planning and Land Authority) [2013] ACTSC 50 (the First Decision) at [58], the Supreme Court dismissed the application.
The second mentioned application was made for the defendant seeking security for costs. The applicant was ordered in the First Decision at [75] to provide security for costs.
The security was provided on 30 April 2013. By February 2014, however, the respondent’s costs had escalated and it sought additional security. On 13 February 2014, Master Mossop ordered the applicant to provide further security by procuring a personal undertaking from Mr Ross that he would pay an amount up to $10 000 of any of the defendant’s costs ordered by the Court to be paid by the plaintiff, if required in addition to the amounts paid already by the plaintiff under the security already ordered. Mr Ross had offered to provide security in an affidavit he made and the plaintiff filed in the proceedings. See Concerned Citizens of Canberra Inc v Chief Planning Executive (Planning and Land Authority) [2014] ACTSC 24 (the Second Decision).
That undertaking was apparently given, for the proceedings were then heard in March 2014 and, in July 2014, the plaintiff’s claim was dismissed in the Third Decision, as noted above (at [2]).
Sometime later, the application for leave to appeal out of time was made and then heard. It was also dismissed: the Fourth Decision.
Costs generally
Section 7 of the Court Procedures Act 2004 (ACT) authorises the making of rules for the practice and procedure of ACT Courts, including matters specified in Sch 1 of that Act. Item 26 of that Schedule specifies costs as such a matter in civil proceedings.
The Court Procedures Rules 2006 (ACT), made under that section of that Act, makes provision in rr 1720 and 1721 for costs as follows:
1720 Costs - entitlement to recover
(1) A party to a proceeding cannot recover any costs of the proceeding from another party or anyone else otherwise than by agreement, under a territory law, or an order of the court under a territory law.
Note A territory law includes these rules (see Legislation Act, s 98).
1721 Costs – general rule
(1)The costs of a proceeding or of an application in a proceeding are in the discretion of the court.
(2)The costs of the proceeding include the costs of an application in the proceeding, unless the court otherwise orders.
These rules appear in Pt 2.17 of Ch 2 of the Court Procedures Rules, which, by r 4 applies to all proceedings unless otherwise specified.
Rule 5001 of the Court Procedures Rules does otherwise specify but does make certain exceptions. It is as follows:
5001 Appellate proceedings – application of ch 2 generally
(1) Except as provided by this rule or another rule in this chapter, chapter 2 (Civil proceedings generally) does not apply to an appellate proceeding.
(2) The applied civil rules apply, with any necessary changes, to an appellate proceeding that is a civil proceeding.
(3) In this rule:
applied civil rules means the following:
·rule 30 (Who may start and carry on a proceeding)
·rule 72 (Originating process – solicitor’s statement about filing)
·division 2.4.3 (Changing parties)
·division 2.4.4 (Included or changed parties – future conduct of proceedings)
·division 2.4.9 (People with a legal disability)
·part 2.9 (Preservation of rights and property)
·part 2.10 (Offers of compromise)
·part 2.16 (Judgment and other orders)
·part 2.17 (Costs)
·division 2.20.2 (Taking of accounts)
·division 2.20.3 (Making of inquiries)
·part 2.21 (Representation by solicitors)
·part 2.22 (Miscellaneous – ch 2).
An appellate proceeding is defined in the Dictionary to the Court Procedures Rules as one to which Ch 5 applies. An application for leave to appeal out of time, as made by the applicant, is made under r 5405(2), a provision within Ch 5. Thus, there can be no doubt that r 1721 of the Court Procedures Rules applies to these proceedings.
The Applicant’s Submissions
The applicant made two broad submissions as to why it should not be ordered to pay the respondent’s costs.
In the first place, it submitted that the proceedings were public interest proceedings and, by implication (though not expressed in its submissions), it should therefore not be ordered to pay costs.
In support of this submission, it noted that its constitution provided that it was a “public interest organisation” and that it did not seek to, nor would it, benefit from “the proceeds of litigation”. It submitted that:
No orders sought, and no ultimate utility of the application would have benefitted the Plaintiff which [is] a public interest body of itself with no commercial, financial or proprietary interest or benefit to be derived from the litigation.
It further submitted that:
Oshlack [Oshlack v Richmond River Council (1998) 193 CLR 72] is oft cited as authority for the proposition that costs follow the event in public interest matters. In answer, it is submitted that the capacity of the Court to hear a matter ought not be trammelled by the spectre of cost orders against them [sic] and be discouraged [sic] from making applications in the public interest for fear of generating a costs order. This is particularly so in matters of cause celebre where there is high public interest and matters of Territory and National importance.
This is some reflection of the comment of Fox J in Kent v Cavanagh (1973) 1 ACTR 43 at 55:
It seems to me undesirable that responsible citizens with a reasonable grievance who wish to challenge Government action should only be able to do so at risk of paying costs to the Government if they fail. They find themselves opposed to parties who are not personally at risk as to costs and have available to them almost unlimited public funds. The inhibiting effect of the risk of paying costs is excessive and not in the public interest. Once, not so long ago, litigation was more of a luxury than it now is and for the most part only wealthy people could engage in it.
Strangely, though this passage was cited by Master Mossop in the Second Decision, the applicant did not refer to it in its submissions.
The second argument advanced in the applicant’s submissions was that somehow in the circumstances the undertaking by Mr Ross created unfairness. I found much of the argument in this submission difficult to follow.
The submission seemed to be summed up in the following paragraph of the applicant’s submissions:
It is therefore submitted that to award costs in an environment where the Plaintiff presented itself squarely with the intention of galvanising assets of substance and represented in the person of prospective income Plaintiff Irwin Ross, that [sic] to now press costs against the Plaintiff where the Plaintiff volunteered to join Mr Ross as a Second Plaintiff and to have that joinder denied, places a limit on the costs against the Plaintiff by virtue of the effect of the Order denying that joinder.
Thus, it was submitted that Mr Ross would be bound by his undertaking to pay up to $10 000, assuming that it was not consumed by any costs payable under the orders of Master Mossop in the Third Decision.
The applicant submitted that Mr Ross was an interested party, a concept not further explained in the context of this litigation, and that, despite the denial of the joinder of him as a second plaintiff, he had somehow become a “necessary party”, a reference to r 210 of the Court Procedures Rules. I note that this rule appears in Div 2.4.2 of these Rules and is, therefore, not one of the “applied civil rules”, identified above (at [21]), that applies to these proceedings.
The applicant submitted that, although the costs order in the Fourth Decision was made against the applicant as a party, Mr Ross may be called upon to honour his undertaking. I make no comment about whether that is likely or required either in fact or law. The applicant complains of Mr Ross’ possible liability despite him being “expressly denied by Court order to be a party to these proceedings”. That, it was submitted, created “a manifest injustice”.
Indeed, it was said that this was “a serious breach of judicial power” in denying “a person directly affected and by name affected by a Court order that was denied standing in the proceedings” and it was asserted that Mr Ross was also precluded from “making submissions while the subject of a Court Order that binds him”.
Given the actual submissions made by the applicant, the following comment in its submissions was at least curious if not disingenuous, namely:
In light of the unfortunate effect of the combination of Court Orders made, it is submitted that Mr Ross is at the mercy of the Plaintiff who elects, again on instruction, that they [sic] will take no action in answering His Honour’s call at [287] of the 6 November 2015 judgment, thus damnifying his undertaking to the mercy of a final Costs Order which will be drawn in part from the full amount of his undertaking to this Court without standing to defend against such a final Costs Order.
If, as seems implied in it, this submission is not a submission made by the applicant in accordance with my invitation for submission as noted above (at [4]), then its content and robust defence of Mr Ross must mean that it is a submission by Mr Ross or on his behalf. Thus, the complaint that he is not being heard is incorrect.
If, on the other hand, it is a submission by the applicant, then it is entirely untrue and probably dissembling to suggest that the applicant (the plaintiff in the Supreme Court proceedings) on instructions has taken “no action in answering” my invitation for submissions for costs. Further, such submissions clearly show from their content that they allowed Mr Ross to make his case.
The applicant and Mr Ross cannot have it both ways.
There was, in the submissions, further emphatic reliance on r 210 of the Court Procedures Rules which, as noted above (at [32]), simply does not apply to these proceedings.
Consideration
Neither argument made by the applicants seems to me to withstand scrutiny.
The usual order is that the successful party in litigation should have his, her or its costs. This approach has a long history. In Ritter v Godfrey [1920] 2 KB 47 at 52-3, Lord Sterndale MR said:
[T]here is such a settled practice of the Courts that in the absence of special circumstances a successful litigant should receive his costs, that it is necessary to show some ground for exercising a discretion by refusing an order which would give them to him.
This approach has been followed in Australia for many years: Vucadinovic v Lombardi [1967] VR 81 at 87; Armstrong v Landmark Corporation Ltd [1967] 1 NSWR 13 at 15.
Despite the emphasis given by Gaudron and Gummow JJ in Oshlack v Richmond River Council (1998) 193 CLR 72 at 86-9; [36]-[45], that general provisions which give a discretion as to costs should not be construed narrowly and that rules of practice should not become rules of law, the general practice remains a significant basis as, at least, a starting point for the consideration.
That does not seem to require a party seeking a different rule to discharge an onus but rather that the Court must be satisfied that there are proper reasons for the order to be made.
The ground here put forward is that the litigation was what the applicant described as “public interest” litigation. Of such litigation, I said in Jacka v Australian Capital Territory [2015] ACTSC 239 at [12]-[14]:
12.... public interest litigation, where other considerations apply and which justify a departure from the general rule.
13.Nevertheless, as Kirby J pointed out in Oshlack v Richmond River Council at 123; [134]:
Courts, whilst sometimes taking the legitimate pursuit of public interest into account, have also emphasised, rightly in my view, that litigants espousing the public interest are not thereby granted an immunity from costs or a ‘free kick’ in litigation. (footnote omitted)
14.Thus, in many cases of claimed ‘public interest litigation’ the courts have still made the ‘usual order’ that costs follow the event: Qantas Airways Ltd v Cameron(No 3) (1996) 68 FCR 387 at 389; Friends of Hinchinbrook Society Inc v Minister for Environment(No 5) (1998) 84 FCR 186 at 188-9; Ruddock v Vadarlis(No 2) (2001) 115 FCR 229 at 237: [18]; Animals’ Angels e.V. v The Secretary Department of Agriculture (2014) 228 FCR 35 at 74; [131]-[132].
It is not always easy to determine what is public interest litigation: Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at 236; [14]. Indeed it remains somewhat unclear as to what may be public interest litigation. Some comments have been made by the courts. Thus, the following possible criteria of what is public interest litigation have been rejected as follows:
· it is not the same thing as what the public finds interesting: Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) [2011] FCA 661; 194 FCR 250 at 253; [9];
· it is not public interest litigation merely because it sheds light on the interpretation of an important statutory provision: Challenger Property Asset Management Pty Ltd v Stonnington City Council (No 2) [2012] VSC 67 at [54];
· that some members of the public express some interest in the litigation is not sufficient: Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; 167 LGERA 432 at 455; [127]; and
· the mere assertion of the unsuccessful party that he, she or it acting in the public interest is insufficient: Hooper v Port Stephens Council [2010] NSWCA 368 at [29].
Indeed, most litigation involves a public interest, namely the public interest in the capacity of litigants to enforce their legal rights: G dal Pont, Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) 263-4; [9.12].
Some assistance has been provided by what Gaudron and Gummow JJ said in Oshlack v Richmond River City Council at 80-1; [20] as follows:
(ii) The characterisation of proceedings as ‘public interest litigation’ with the ‘prime motivation’ being the upholding of ‘the public interest and the rule of law’ may be a factor which contributes to a finding of ‘special circumstances’ but is not, of itself, enough to constitute special circumstances warranting departure from the ‘usual rule’; something more is required.
(iii) The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation ‘other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna’.
(iv) In the present case, ‘a significant number of members of the public’ shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a ‘public interest’ in the outcome of the litigation.
(v) The basis of the challenge was arguable and had raised and resolved ‘significant issues’ as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had ‘implications’ for the Council, the developer and the public.
Having regard to this decision, Lloyd J in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; 136 LGERA 365 at 371; [15], said:
There are several matters that may be considered in determining whether the proceedings can be characterised as public interest litigation. These may conveniently be summarised as follows:
§ The public interest served by the litigation: Darlinghurst Residents’ Association v Elarossa Investments Pty Ltd (No. 3) (1992) 75 LGRA 214 at 215; Liverpool City Council v Roads and Traffic Authority (No. 2) (1992) LGRA 210.
§ Whether that interest is confined to a relatively small number of members from the group or association in the immediate vicinity of the development, concerned with their own private amenity; or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant geographic area: Darlinghurst Residents’ Association at 80-81; Oshlack v Richmond River Council (1998) 193 CLR 72; 96 LGERA 173.
§ Whether the applicant sought to enforce public law obligations: Oshlack v Richmond River Council (1998) 193 CLR 72; 96 LGERA 173.
§ Whether the prime motivation of the litigation is to uphold the public interest and the rule of law: Oshlack v Richmond River Council (1998) 193 CLR 72; 96 LGERA 173.
§ Whether the applicant has no pecuniary interest in the outcome of the proceedings: Oshlack at 246.
This approach has been followed in a number of decisions in the NSW Land and Environment Court, such as Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; 173 LGERA 280 at 289-90; [38], and elsewhere in Director of Public Prosecutions v Dickfoss (No 2) [2011] NTSC 29 at [26]-[27], Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; 176 LGERA 424 at 441; [62], 467-8; [202], and Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd and Ors [2014] NZSC 167 at [15].
Sometimes to these principles may be added the factor that the application raises a novel point of law that is reasonably arguable or that an administrative decision-making process was contrary to good decision-making: Delta Electricity v Blue Mountains Conservation Society Inc at 441; [62].
After considering decisions such as The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863; 98 ALD 651, Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; 165 FCR 211, and Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 3) [2012] FCA 744; Cowdroy J in Northern Inland Council for the Environment Inc v Minister for the Environment [2014] FCA 216 at [8], also considered the following additional factors were relevant:
· whether the proceedings concern novel or difficult questions of law that are of general importance;
· whether the application was arguable and the strength of the applicant’s case; and
· the applicant’s conduct of the case.
Nevertheless, it is important that these various considerations are not applied in a way that is regarded as what Pearlman CJ referred to as a “shopping list” approach where the Court “merely ticks with approval or rejects with a cross”: Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254 at 256; [4](10).
In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) at 285; [13] Preston J identified a three-step approach to such a costs consideration, as follows:
A review of the decisions on costs reveals that courts have used, in effect, a three step approach in determining whether to depart from the usual costs rule: first, can the litigation be characterised as having been brought in the public interest?; secondly, if so, is there ‘something more’ than the mere characterisation of the litigation as being brought in the public interest?; and thirdly, are there any countervailing circumstances, including relating to the conduct of the applicant, which speak against departure from the usual costs rule?
Applying these principles, it does not seem to me to result in a finding that this is public interest litigation.
There was not, apart from mere assertion by the applicant, any rationale or explanation given as to why this was public interest litigation.
There was no particular public interest represented by the applicant; it had at incorporation five members and, immediately before commencement of the proceedings, six members. By 10 February 2014, when the litigation was about to be heard, it had 10 members, and two days before the hearing actually commenced 18 members. New members had to be appointed by two current members. See the Third Decision at 348; [319], 349; [323], [325]-[326].
The members appeared to live generally at a remote distance from the site of the proposed mosque: the Third Decision at 348-9; [321]. I found in the Fourth Decision at 287; [275] that the applicant had no more than “intellectual, philosophical and emotional” interests in the matter and was no more than an “intermeddler or busybody”, having no interest beyond that of the public at large.
I accept that, apart from this interest, the applicant would gain nothing from the proceedings. The submission it made that it would not “benefit from the proceeds of the litigation” was at least odd as there are no “proceeds” from judicial review litigation. See, for example, Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637; 88 ALR 517 at 522. There would, even if successful, be no “proceeds” of this litigation under any circumstances.
There was, as far as I could see, no likely pecuniary interest of any other kind that would benefit the applicant were it successful in these proceedings.
There was nothing significant in the challenges made to the decision-making process. Indeed, as Master Mossop said in the Third Decision at 334; [232], of the suggestion that the alleged errors (none of which his Honour upheld) could in combination constitute a decision that was so unreasonable that no reasonable person could have exercised the decision in that manner, as outlined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, that the errors had to be viewed as “not coming close to the tests” for such unreasonableness. None of the grounds seemed to me to be novel, or even strongly arguable.
In my view, this was not public interest litigation as ordinarily considered, such as to justify an order for costs in favour of the applicant or, indeed, the alternative of no order for costs.
I do not consider that the litigation can properly be described as public interest litigation, so there is no need to consider the other two steps.
As to the second matter, I similarly do not see any basis for ordering the respondent to pay the applicant’s costs or an order that there be no order as to costs.
The complaint by the applicant (or Mr Ross for the reasons alluded to above (at [30]), when referring to the applicant’s submissions) seemed to be that, as Mr Ross may have to pay the costs, it was unfair that he was not a party, the Court having denied him that status in the First Decision and he was, therefore, unable to be heard, even though he was an interested or aggrieved party.
Much reliance was placed on the terms of r 210 of the Court Procedures Rules. For the reasons outlined earlier (at [32]), that provision simply does not apply.
Nevertheless, natural justice, including a right to be heard, is an important value in litigation as I confirmed in Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2 at [116].
Mr Ross was, however, given an opportunity to be heard before he made the offer which became the undertaking. He made an affidavit containing that undertaking, as noted in the Second Decision at [10], [11] and [29]. That discloses also that Mr Ross is the president of the applicant.
He was, it was plain in earlier evidence in the proceedings, well aware of the consequences of his participation in the proceedings, as can be seen from what was said in the First Decision at [39].
His presidency of the applicant also suggests that he would have some influence on, for instance, its decision to seek an extension of time within which to appeal, a decision he personally advised to the applicant’s lawyers: the Fourth Decision at 258; [31]. Indeed, he seemed intimately involved in the process of making that application: the Fourth Decision at 258-60; [36]-[38].
It is simply disingenuous, if not verging on the deceitful, to suggest that the interests of Mr Ross could not be addressed by the applicant in its submissions, at least to a greater extent than it was actually done.
There was always an opportunity for Mr Ross to be released from his undertaking. A court has power to release a party from an undertaking if, for example, new facts come into existence which would render the enforcement unjust: Adam P Brown Male Fashion Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177-8. Were Mr Ross to consider there was to be an unfairness in the enforcement of the undertaking, he could have applied to the Court for his release from it and nothing done or said in any of these proceedings could have disentitled him from making such an application, though it may not, of course, have been granted.
In any event, no order was in fact made against Mr Ross. Master Mossop ordered the plaintiff to provide additional security and that it procure the undertaking: the Second Decision at [30]. It was entirely up to Mr Ross as to whether, as offered in his affidavit, he would give the undertaking. As Morton LJ said in Cutler v Wandsworth Stadium Ltd [1945] 1 All ER 103 at 105: “Litigants are not ordered to give ... undertakings; they choose to give them...” There can, in the circumstances, be no doubt that Mr Ross knew what he was doing and the possible consequences for him personally.
There is nothing in the applicant’s submissions to show any basis to relieve the applicant for the ordinary consequences of its failed application.
Accordingly, the applicant has not satisfied me that an order should be made other than that the applicant pay the respondent’s costs. I shall so order.
| I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 17 January 2017 |
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