Cooper and Oxley Builders Pty Ltd v Steensma
[2016] WASC 386 (S)
•18 JANUARY 2017
COOPER & OXLEY BUILDERS PTY LTD -v- STEENSMA [2016] WASC 386 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 386 (S) | |
| Case No: | CIV:1157/2016 | ON THE PAPERS | |
| Coram: | LE MIERE J | 18/01/17 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Costs awarded | ||
| B | |||
| PDF Version |
| Parties: | COOPER & OXLEY BUILDERS PTY LTD AUKE STEENSMA AM LAND PTY LTD STEVE LIEBLICH |
Catchwords: | Costs Judicial review Certiorari Notice of intention to abide Turns on own facts |
Legislation: | Construction Contracts Act 2004 (WA) Rules of the Supreme Court 1971 (WA), O 56 r 4, O 56 r 7(1) |
Case References: | City of Subiaco v Minister for Planning & Heritage (Unreported, WASC, Library No 970051, 19 February 1997) Cooper & Oxley Builders Pty Ltd v Steensma [2016] WASC 386 Delmere Holdings Pty Ltd v Green [2015] WASC 148 Field Deployment Solutions Pty Ltd v Jones [2015] WASC 136 R v Hastings Licensing Justices, Ex-parte John Lovibond & Sons Ltd [1968] 1 WLR 735 Re Guests; Ex Parte Plutonic Operations Ltd [2001] WASC 158 Re Nicholls SM; Ex Parte Plutonic Operations Ltd [2002] WASCA 232 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
AUKE STEENSMA
Respondent
AM LAND PTY LTD
Other Party
- Applicant
AND
STEVE LIEBLICH
Respondent
AM LAND PTY LTD
Other Party
Catchwords:
Costs - Judicial review - Certiorari - Notice of intention to abide - Turns on own facts
Legislation:
Construction Contracts Act 2004 (WA)
Rules of the Supreme Court 1971 (WA), O 56 r 4, O 56 r 7(1)
Result:
Costs awarded
Category: B
Representation:
CIV 1157 of 2016
Counsel:
Applicant : No appearance
Respondent : No appearance
Other Party : No appearance
Solicitors:
Applicant : Mills Oakley Lawyers
Respondent : No appearance
Other Party : No appearance
CIV 1459 of 2016
Counsel:
Applicant : No appearance
Respondent : No appearance
Other Party : No appearance
Solicitors:
Applicant : Mills Oakley Lawyers
Respondent : No appearance
Other Party : No appearance
Case(s) referred to in judgment(s):
City of Subiaco v Minister for Planning & Heritage (Unreported, WASC, Library No 970051, 19 February 1997)
Cooper & Oxley Builders Pty Ltd v Steensma [2016] WASC 386
Delmere Holdings Pty Ltd v Green [2015] WASC 148
Field Deployment Solutions Pty Ltd v Jones [2015] WASC 136
R v Hastings Licensing Justices, Ex-parte John Lovibond & Sons Ltd [1968] 1 WLR 735
Re Guests; Ex Parte Plutonic Operations Ltd [2001] WASC 158
Re Nicholls SM; Ex Parte Plutonic Operations Ltd [2002] WASCA 232 (S)
- LE MIERE J:
Background
1 These two matters were applications for writs of certiorari to issue in relation to determinations which were delivered by adjudicators under the Construction Contracts Act 2004 (WA). I heard these matters together on 9 November 2016 and delivered my reasons for decision on 30 November 2016. In my reasons I decided that the adjudicators had each made jurisdictional errors and each determination should be quashed: Cooper & Oxley Builders Pty Ltd v Steensma [2016] WASC 386. At the delivery of the reasons I directed that the parties put on submissions as to the appropriate costs orders and that issue be determined on the papers. For the reasons that follow the second respondent, AM Land Pty Ltd (AM Land), should pay the costs of the applicant, Cooper & Oxley Builders Pty Ltd (Cooper & Oxley), up to 7 November 2016. That is the date on which AM Land filed and served a notice that it would abide the decision of the court (the Notice).
Costs orders sought
2 Cooper & Oxley seeks orders that AM Land pay its legal costs of the applications. Cooper & Oxley do not seek to recover the costs of the judicial review application from the adjudicators who were the first respondents in each matter. AM Land submits that the appropriate order would be that no order is made as to costs.
Principles in relation to costs of judicial review
3 Order 56 rule 7(1) of the Rules of the Supreme Court 1971 (WA) deals with costs of judicial review.
The Court may make an order for the payment of the costs of the proceedings on an application against one or more of these persons -
a) the applicant;
b) the person who made the challenged decision or engaged in the challenged conduct;
c) a person served with the application;
d) a person not served with the application whom the Court allowed to be heard on it.
4 The court has discretion to award costs in cases of judicial review and there are no strict guidelines laid down as to how that discretion should be exercised. The general rule is that the successful party will recover their costs.
5 It should be observed that in the case of judicial review applications the party who must pay the successful applicant's costs is usually the other party to the application and not the respondent decision-maker. This court will rarely exercise its discretion to award costs against respondent decision makers: City of Subiaco v Minister for Planning & Heritage (Unreported, WASC, Library No 970051, 19 February 1997) (Kennedy, Wallwork & Scott JJ).
6 AM Land submitted that this is not a case where costs should follow the event. AM Land referred to R v Hastings Licensing Justices, Ex-parte John Lovibond & Sons Ltd [1968] 1 WLR 735 as illustrating that there is a general principle that in cases such as these the court should in its discretion make no order as to costs. In that decision Lord Parker CJ said:
It is very rare that this court makes any award in regard to costs on an application for one of the prerogative orders, unless the party has appeared and contested the application. Counsel for the applicants has, however, pointed out in the present case that the respondents, no doubt under a bona fide misconception as to their rights under the licensing Acts, succeeded in persuading the magistrates to adopt the same misconception and have fought this case, as it were, up to 14 December when they wrote saying they were no longer contesting the application. There is a precedent for making an award of costs in such a case: see R v Birmingham Union Guardians ((1874) 44 LJMC 48) (738).
7 His Honour therefore ordered that respondents pay the applicant's costs up to 14 December.
8 Put against that authority are two decisions of this court. The first was Field Deployment Solutions Pty Ltd v Jones [2015] WASC 136. In that decision Mitchell J dismissed the application for judicial review and ordered that the applicant pay the first and second other parties' costs of the application. The second was Delmere Holdings Pty Ltd v Green [2015] WASC 148. Kenneth Martin J in that decision said:
Delmere, as the successful party on the application, both in quashing Mr Green's Determination and in resisting the correlative application to register and enforce that Determination as a judgment of this court, should, prima facie, receive its taxed costs upon both applications [145].
9 The language suggests that his Honour's observation was obiter and I note His Honour stated that he would determine any residual disputation on the papers. In any event, the case is distinguishable from R v Hastings in that his Honour observed that the application in that case was actively resisted by the other party: Delmere Holdings v Green [5]. Further, the other party in that action also sought to enforce the determination the subject of the application: Delmere Holdings v Green [6]. Another point of difference between those authorities and R v Hastings is the fact that they were contested throughout the proceedings.
10 The approach of the courts to uncontested applications of a similar kind to this is seen in Re Nicholls SM; Ex Parte Plutonic Operations Ltd [2002] WASCA 232 (S) (Wheeler J). In that case the court had made absolute an order nisi for certiorari. The applicant sought its costs for both the order nisi stage and the order absolute hearing. The applicant was wholly successful in obtaining the order nisi in a decision of Roberts-Smith J delivered on 20 June 2001 after a hearing where the objector appeared and unsuccessfully opposed the order nisi: Re Guests; Ex Parte Plutonic Operations Ltd [2001] WASC 158. However, the applicant was not awarded its costs of the order absolute hearing. Wheeler J made that decision on the basis that the applicant was only partly successful in the order absolute hearing and the objector did not participate in that hearing and had filed a notice of intention to abide on 15 May 2002. The court had heard argument on whether an order absolute should be made on 12 June 2002.
11 Cooper & Oxley also submitted that they should have the costs of the application on the basis that AM Land materially contributed to the jurisdictional error of the adjudicator by making submissions that were incorrect in law. Parker CJ's decision in R v Hastings was that where the other party had a misconception as to their rights under an Act and persuaded the decision maker to adopt that misconception they would only be required to pay the costs of the applicant insofar as they actively opposed the application. I am not convinced that the conduct of AM Land in the adjudications should lead to the court awarding costs against AM Land in the subsequent judicial review applications.
AM Land's role in the proceedings
12 AM Land entered a memorandum of appearance in this matter on 25 February 2016. AM Land attended chambers hearings on 25 February 2016 and 1 April 2016. At the appearance on 25 February 2016 counsel for AM Land, Mr Guerrini, stated that AM Land would have Dr Hockley appearing as counsel in respect to the argument. On 1 April 2016 Chaney J ordered AM Land file and serve any affidavit or submissions by 15 April 2016 and 13 May 2016 respectively. Counsel for AM Land, Dr Hockley appeared with Mr Guerrini. AM Land did not file any affidavits or submissions, and it filed the Notice on 7 November 2016, two days before I heard the matter. AM Land submits that its conduct in no way contributed to the incurrence of costs by the applicant. It was further submitted that the applicant had the onus to satisfy the court of jurisdictional error and the matter was required to be heard. At no stage before filing the Notice did AM Land suggest that they would not contest the application.
Conclusion
13 The appropriate order is that AM Land should pay the costs of Cooper & Oxley up to 7 November 2016. AM Land appeared through counsel on two occasions in relation to these matters and did not file the Notice until two days before the hearing. Order 56 r 4 of the Rules gives a person who is served with an application the option to enter an appearance or file and serve on the applicant a notice stating the person does not intend to take part in the proceedings and will accept any order made by the court on the application other than as to costs.
14 This is not a case where the second respondent played no role in the judicial review proceedings, and it was only by filing and serving the Notice that AM Land signalled that it was not going to oppose the application and would not be appearing to make oral submissions. Given that AM Land did file the Notice I find they took steps, even at that late stage, to reduce the cost of the proceeding and the time it would occupy. In circumstances where the hearing would need to have gone ahead in any event, I find it appropriate that AM Land pay the applicant's costs up to the time it ceased opposing the application and gave notice that it would abide the decision of the court. I will therefore order that AM Land pay the costs of Cooper & Oxley up to 7 November 2016.
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