Corporation of the City of Norwood Payneham and St Peters v Minister for Infrastructure and Transport (No 2)

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
CORPORATION OF THE CITY OF NORWOOD PAYNEHAM AND ST PETERS v MINISTER FOR INFRASTRUCTURE AND TRANSPORT AND ORS (No 2)
[2021] SASC 131
Judgment of the Honourable Justice Parker
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - COSTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
This is an application for costs.
The applicant’s (the Council) application for judicial review of a decision made by a delegate of the Commissioner of Highways (the Delegate) on 31 May 2021 to authorise the third and fourth interested parties (the Developers) to undertake certain work at the intersection of The Parade and George Street, Norwood was dismissed on all grounds.
The first interested party (the Minister) and second interested party (the Commissioner) seek an order for costs against the Council. The Developers also sought an order for costs against the Council, however, after the Court had heard submissions and reserved its decision, the Developers and the Council informed the Court that they had agreed that no order for costs should be made as between those parties.
The Minister and the Commissioner submit that they should be awarded their costs on the standard basis as they were successful in all respects. The Council submit that the Commissioner should be ordered to pay its costs on a standard basis up to 1 June 2021, or alternatively, that there be no order as to costs prior to 1 June 2021 on the basis that the Court had not determined the validity of the decision made by the Commissioner in December 2020. The December 2020 decision was revoked by the Delegate on 31 May 2021 as part of the decision which became the subject of these proceedings.
Held, per Parker J:
1.As the Council did not succeed in any element of the proceedings, its application to be awarded costs for the period prior to 1 June 2021 is rejected.
2.No order for costs is made in favour of the Minister on the basis that the very exceptional circumstances referred to by White J in Borg v de Vries (Trustee) in the matter of the Bankrupt Estate of David Morton Bertram (No 2) [2019] FCA 227 have not been established.
3.Applying a broad-brush approach in apportioning costs for the period prior to 1 June 2021, the Council is required to pay 85 per cent of the costs incurred by the Commissioner prior to 1 June 2021 on a standard basis.
4.The Council is to pay 100 per cent of the costs incurred by the Commissioner on or after 1 June 2021 on a standard basis.
5.No order for costs is made between the Developers and the Council in accordance with the agreement reached between those parties.

Highways Act 1926 (SA) ss 26(3), 221, 224; Liquor Licensing Act 1997 (SA); Local Government Act 1999 (SA) s 208, Ch 11; Planning, Development and Infrastructure Act 2016 (SA); Road Traffic Act 1961 (SA), referred to.
Borg v de Vries (Trustee) in the matter of the Bankrupt Estate of David Morton Bertram [2019] FCA 227, applied.
Corporation of the City of Norwood Payneham and St Peters v Minister for Infrastructure and Transport and Ors [2021] SASC 97; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Palace Gallery Pty Ltd v Liquor and Gambling Commissioner (2014) 120 SASR 299; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, discussed.
L v State of South Australia (2017) 129 SASR, considered.

CORPORATION OF THE CITY OF NORWOOD PAYNEHAM AND ST PETERS v MINISTER FOR INFRASTRUCTURE AND TRANSPORT AND ORS (No 2)
[2021] SASC 131
Civil

PARKER J: This is an application for costs following the dismissal of judicial review proceedings commenced by the City of Norwood Payneham and St Peters (the Council) against the Minister for Infrastructure and Transport (the Minister) and the Commissioner of Highways (the Commissioner) concerning the construction of a scramble crossing and right-turn lanes at the intersection of The Parade and George Street, Norwood (the Intersection).[1] Two owners of property near to the Intersection, 166 The Parade Pty Ltd and Parkade Pty Ltd (collectively referred to as the Developers), were also involved in the proceedings.
[1]Corporation of the City of Norwood Payneham and St Peters v Minister for Infrastructure and Transport and Ors [2021] SASC 97.
The Minister and the Commissioner and also the Developers initially sought an order for costs against the Council. The position in relation to the Developers’ claim for costs was potentially affected by an alleged Calderbank offer and by the Council’s contention that the Developers had been over-represented at trial by senior and junior counsel. However, after the Court had heard submissions and reserved its decision, the Developers and the Council informed the Court that they had agreed that no order for costs should be made as between those parties. It is therefore not necessary to consider further the role of the Developers in the proceedings and the other issues that I have mentioned.
The history of the proceedings
The contentions advanced on behalf of the Council in seeking to minimise its liability for costs, turn very much on the rather complex history of the proceedings.[2] It is therefore necessary to refer to that history and the relevant administrative decisions in greater detail than is usual when determining costs.
[2] The history is set out at length at [4] to [39] of the primary judgment.
Before doing so, I note that the Developers each hold interests in land comprising significant shopping facilities located close to the Intersection and are concerned that the configuration of the Intersection should facilitate ready access to their business premises. The Council as a relevant local government authority has been involved for many years in consultations and discussions about the Intersection and The Parade more generally. The land comprising The Parade is vested in the Council as an estate in fee simple pursuant to s 208(1) of the Local Government Act 1999 (SA) (the LGA). By virtue of a notice published in the Gazette in 2001 the Commissioner assumed care, control and management of the relevant portion of The Parade under s 26(3) of the Highways Act 1926 (SA).
On 18 December 2019 the Council resolved to support a particular proposal for the configuration of the Intersection. On 18 June 2020 the Developers commenced judicial review proceedings against the Council and the Commissioner in respect of that Council decision. Those proceedings have not been advanced. They have been overtaken by the subsequent judicial review proceedings instituted by the Council against the Minister, the Commissioner and the Developers.
On 16 September 2020 the Minister executed a Funding Deed whereby he agreed to provide funding to the Developers to undertake construction works at the Intersection. Those works were materially different from those that were the subject of the Council decision in December 2019. The provision of funding was contingent upon entry into a Developer Deed. The Premier announced the following day that the Minister had signed the Funding Deed.
On 28 September 2020 the Council complained to the Commissioner about the process he and the Minister had followed and sought copies of certain documents. The Commissioner advised the Council on 7 October 2020 that the Department was committed to consulting with the Council and all other interested parties about the works so as to ensure that there was minimal disruption.
On 14 October 2020 the Council filed an action for pre-action discovery in this Court against the Minister, the Commissioner and the Developers. This application was discontinued on 11 November 2020.
On 8 December 2020 the Commissioner signed and sealed a Developer Deed which granted the Developers authorisation under the LGA to conduct the works at the Intersection.
On 23 December 2020 the Council filed and served the application for judicial review. The Council filed an interlocutory application on 18 March 2021 seeking an interlocutory injunction to prevent commencement of the works. The Developers subsequently gave undertakings that they would give seven days’ notice before undertaking any works. On 13 April 2021 an interlocutory injunction was granted by consent until the expected date of conclusion of the trial. That injunction was extended by consent until judgment was delivered on 2 July 2021.
On 18 March 2021, in support of its application for an injunction, the Council filed an affidavit which exhibited two reports from a consultant arborist, Mr Colin Thornton, dated 25 January 2021 and 16 March 2021. These reports suggested that there was a risk of damage to particular trees located in the median strip of The Parade should the works proceed as proposed. Neither the Commissioner nor the Developers had previously been made aware of the advice provided to the Council by Mr Thornton.
On 6 April 2021 the Department for Infrastructure and Transport (the Department) was provided with amended concept plans prepared for the Developers which were intended to reduce the risk of damage to the two trees referred to in the reports prepared by Mr Thornton. The revised concept plans were provided to the Council’s solicitors that day by the Crown Solicitor.[3]
[3] Paragraphs [39] and [40] of the primary judgment incorrectly suggested that the Council was not informed until 20 April 2021.
Subsequently, on 20 April 2021, the Council was advised by the Department that the amended concept plans had been accepted from a technical perspective and it now intended to seek authorisation to enter into a fresh Developer Deed based upon those plans. The decision would be made by a delegate of the Commissioner, Mr Wayne Buckerfield. After allowing time for the Council to make submissions, and granting extensions for further submissions, on 31 May 2021 Mr Buckerfield revoked the decision that had been made by the Commissioner on 8 December 2020. He granted a fresh authorisation to the Developers to conduct the works at the Intersection subject to compliance with the terms of the draft Developer Deed. Those decisions were the subject of the trial.
The three applications for judicial review
The first application dated 23 December 2020
The Council filed its first application for judicial review on 23 December 2020. This application challenged the decision of the Minister to grant funding to the Developers and also decisions that had allegedly been made by the Minister to direct the Commissioner to exercise his statutory power under relevant statutes to facilitate the proposed works at the Intersection. Alternatively, the Council challenged prospective decisions yet to be made by the Minister to direct the Commissioner about those matters. The Council also challenged a decision allegedly made by the Commissioner to grant authorisation to the Developers to undertake the works under the LGA or alternatively a prospective decision about that matter. Similarly, the Council also challenged a decision allegedly made or a prospective decision to be made by the Commissioner under the Road Traffic Act 1961 (SA). The Council sought orders in the nature of certiorari, prohibition, declarations and injunctive relief variously against the Minister, the Commissioner and the Developers.
The grounds upon which the Council sought relief were that the Commissioner did not have care, control and management of the median strip in The Parade. The Minster and the Commissioner were also said to lack power to make a decision because they had breached the procedural fairness obligation by failing to accord the Council a hearing before making the impugned decisions and for that reason their decisions were tainted by apprehended bias. Their decisions were said to be legally unreasonable for the latter reason and also because no reasonable authority could have concluded that the works were appropriate without information about the number of vehicles likely to be prevented from entering the Developers’ car parks if the earlier decision of the Council had been implemented.
The second application dated 31 March 2021
An amended originating application was filed on 31 March 2021. It maintained the contentions in the first application but was considerably widened to reflect the arborist’s advice received by the Council. This application sought declarations that the Commissioner did not have care, control and management of the trees located in the median strip on The Parade and was not authorised by statute to interfere with, damage or destroy the trees. Alternative contentions were also advanced in the event that the median strip was in the Commissioner’s care, control and management. Declarations were sought that the Commissioner could not exercise powers under the LGA in respect of the median strip and also that the authorisation given by the Commissioner to the Developers under the LGA was invalid and did not permit them to interfere with the trees. Additionally, a declaration was sought that the Developers would be trespassing on Council land when undertaking works on the median strip.
The third application dated 11 June 2021
A third application for review was filed by the Council on 11 June 2021. While this application involved a substantial recasting of the earlier applications, there was a significant overlap with the preceding application. The trial proceeded on the basis of this application.
The only decision now challenged was that made by Mr Buckerfield on 31 May 2021 to grant authorisation under the LGA to the Developers to conduct the works and defer the decision to enter into the draft Developer Deed. This reflected the fact that Mr Buckerfield had quashed the decision made by the Commissioner in December 2020.
The Council sought an order in the nature of certiorari quashing the decision made by Mr Buckerfield and orders in the nature of prohibition restraining the Developers from acting upon that decision. Declarations were sought that the Commissioner was not authorised by statute to authorise the Developers to conduct works in the median strip of The Parade and also that his authorisation lacked particularity. Although a declaration was sought that the proposed works required development approval under the Planning, Development and Infrastructure Act 2016 (SA) that matter was not pursued at trial and the Council reserved its rights in that respect. The Council also sought a declaration that the Developers would be trespassing on Council land if they undertook the proposed works in the median strip. An injunction was also sought against the Commissioner and any of his delegates from facilitating the construction of the works and an injunction was sought against the Developers to prevent them from commencing construction.
The third application did not impugn any decision made by the Minister nor was any relief sought against the Minister. References were made to the Minister as part of the history set out in the statement of facts, issues and contentions and the Minister remained joined as the first interested party.
The third application for review included approximately an additional eight pages of facts, issues and contentions supporting the attack on Mr Buckerfield’s decision and the changes to the orders being sought.
Submissions on behalf of the Minister and the Commissioner
The Minister and the Commissioner seek their costs on the standard (i.e. party/party) basis as they were successful in all respects.
Counsel noted that although I had stated at [264] of the primary judgment that, by requesting Mr Buckerfield to reconsider the matter, the Commissioner had effectively acknowledged that there might be problems with his decision, I had not found the earlier decision to be invalid and nor had it been necessary to decide that question.
Counsel pointed to the fact that Commissioner had determined that it was appropriate to make a fresh decision and arranged for Mr Buckerfield undertake that task. That was not because of concern about the lawfulness of the original decision but because the merits had changed in light of the new evidence.
Counsel also contended that if Mr Buckerfield had regarded the Commissioner’s earlier decision as being legally invalid, the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj indicates that it would not have been necessary to quash that decision.[4] I do not consider that this contention assists the Commissioner. The fact that Mr Buckerfield chose to quash the earlier decision does not serve to prove its validity.
[4] (2002) 209 CLR 597.
It was also submitted on behalf of the Minister and the Commissioner that the contentions advanced in the second originating application filed on 31 March 2021 and a third application filed on 11 June 2021 remained essentially the same as those advanced in the first application. In both instances the primary questions advanced were matters of statutory construction concerning the nature and extent of the powers held by the Commissioner. It was also contended in both the second and third applications that the proposed works would involve unlawful interference with the trees located in the median strip and that the Commissioner could not authorise such action by the Developers. An allegation of trespass was also made in both the second and third applications.
It was submitted on behalf of the Minister and the Commissioner that there were only three material differences between the second and third applications. The contention in the second application that the Commissioner had failed to take into account a relevant consideration, being the risk of damage to trees, did not appear in the third application. However, two additional arguments appeared in the third application. They were, first, a contention that Mr Buckerfield’s decision did not identify with sufficient certainty the works that he had authorised. Secondly, it was contended that an appropriate development approval had not been obtained. However, as I have already noted, the latter contention was not pressed at trial.
It was also submitted that an allegation that the relevant decision had been vitiated by a reasonable apprehension of bias was advanced in each application, the basis for that contention had changed. In the first application the source of the bias was said to be a failure to accord the Council a hearing before the decision was made, whereas in the third application the apprehended bias was said to arise from Mr Buckerfield’s subordinate role to the Commissioner in the Departmental hierarchy and the fact that the Minister and Premier had publicly committed to delivery of the impugned works at the Intersection.
Counsel for the Minister and Commissioner also referred to the enormous discovery exercise that had been undertaken by the Department on behalf of the Minister and Commissioner. That had involved the production of some 506 documents extending well over 4,000 pages. Only two of those documents had found their way into affidavit material filed on behalf of the Council.
The Minister and Commissioner referred to the scope of the discovery exercise in response to the Council’s submission that it should not be liable for costs prior to the decision made by Mr Buckerfield on 31 May 2021. The documents sought in the discovery application had related to the final decision and contentions, albeit that very few were specifically relied upon.

It was also submitted that, although most of the legal work had been performed on behalf of the Commissioner, to the extent that additional costs were incurred in representing the Minister, he was entitled to his costs. Contentions were advanced against the Minister in the first and second applications that were not withdrawn until the lodgement of the third application.
The Council’s submissions
The Council contends that the Commissioner should be ordered to pay its costs on a standard basis up to 1 June 2021. However, that submission was only faintly pressed. The Council primarily relies upon its alternative submission that there should be no order as to costs as between the Commissioner and the Council up to 1 June 2021.
The basis upon which the Council submits that no order for costs should be made prior to 1 June 2021 was that the Court had not determined the validity of the decision made by the Commissioner in December 2020. The Council referred to a number of authorities in support of that proposition.[5] In such a case an order for costs should not be made unless it appears that one party has acted unreasonably in commencing or defending the proceeding.[6]
[5] See for example Borg v de Vries (Trustee) in the matter of the Bankrupt Estate of David Morton Bertram (No 2) [2019] FCA 227; Palace Gallery Pty Ltd v Liquor and Gambling Commissioner (No 2) (2014) 120 SASR 299.
[6] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624 (McHugh J).
The Council refers to the fact that the Court recognised at [264] that the Commissioner arranged for Mr Buckerfield to make a fresh decision as he “had acknowledged that there might be problems” with the decision that he had made in December 2020. The Council did not unreasonably prolong its challenge to the Commissioner’s original decision. That challenge was abandoned as soon as it became apparent that it was of no practical utility. Although the Court did not enquire into the merits of that original challenge, as articulated in the first application, it cannot be said that the Council acted unreasonably in instituting its challenge so as to warrant an order for costs against the Council.
The Court did not directly consider the Council’s contention that there had been a denial of procedural fairness in respect of the original decision due to the failure to accord it a hearing. In that respect it is important to recognise that the Court accepted in the context of the challenge of the later decision made by Mr Buckerfield that the Council was entitled to be accorded procedural fairness although the Court found that there was no breach of the bias rule.
The Council concedes that as it failed in its challenge to the decision made by Mr Buckerfield on 31 May 2021 it should be ordered to pay the costs of the Commissioner on a standard basis for the period from 1 June 2021 onwards.
The Council also submits that there should be no order as to costs as between the Council and the Minister in relation to the entirety of the proceedings. That is because the validity of the decision made by the Minister has not been decided.
Consideration
Due to the agreement reached between the Developers and the Council concerning costs and the concession by the Council that it is liable on a standard basis for the costs incurred by the Commissioner from 1 June 2021, there are three issues to be resolved. The first issue is whether the Minister and the Commissioner should be ordered to pay any part of the costs incurred by the Council prior to 1 June 2021. The second issue is whether the Council should be ordered to pay any part of the costs incurred by the Commissioner prior to 1 June 2021. The third issue is whether the Council should bear any part of the costs incurred by the Minister. In deciding those issues, the terms of the first, second and third applications for review must be compared. Before doing so, it necessary to consider the authorities referred to by senior counsel for the Council.
The relevant authorities
The Full Court of this Court considered in Palace Gallery Pty Ltd v Liquor and Gambling Commission (No 2) the approach to be adopted where a challenge to the validity of an executive action is denied any utility because the impugned matter is remedied in anticipation of an adverse decision by the Court.[7]
[7] (2014) 120 SASR 299.
The facts in the Palace Gallery case were that the plaintiff had commenced proceedings to determine the proper construction of a particular provision of the Liquor Licensing Act 1997 (SA) and the validity of a Code of Practice made under that provision. An application for an injunction was refused and the matter referred to the Full Court. Shortly prior to the matter coming on for hearing, within two days a Bill was introduced in the Parliament, passed through both Houses, was assented to by the Governor and proclaimed to commence operation. The statutory amendment negated the basis for the challenge.
The hearing before the Full Court was vacated. However, the Court subsequently heard argument about the validity of the amending Act and found it to be valid. Certain questions were also advanced and answered adversely to the plaintiff.
In dealing with the question of costs the Full Court, comprising Kourakis CJ and Blue and Stanley JJ, made the following observation:[8]
The defendants are manifestations of the executive government of the State who have had the benefit of legislation which was calculated, in the objective sense, to support their case in litigation before the court. The ultimate question in issue in this action was the validity of the Code of Practice made by an executive agency in the purported exercise of statutory power. In enacting the Amending Act, Parliament moved to remedy legislatively a perceived defect in the legislative foundation for that executive action. The rights of citizens to invoke the judicial review jurisdiction of this Court, to pass on the validity of executive acts made pursuant to a statutory power, is a fundamentally important constitutional right. As a general rule, litigants who act reasonably in bringing proceedings in that jurisdictions should not suffer a costs penalty for bringing an action which is subsequently denied any utility because the alleged deficiency in the statutory support for the impugned executive action is retrospectively remedied in anticipation of an adverse declaration by the court. If that general rule in not applied, the threat of Parliamentary action would unduly inhibit the invocation of the jurisdiction of this Court to ensure that the executive does not act beyond the scope of its statutory authority.
[8] Ibid at [12].
In light of those observations, the Court did not make any order concerning the costs of the plaintiff’s failed application to determine the validity of the Code of Practice and the proper construction of the relevant provision of the Act. However, the Court did make an order for costs against the plaintiff in respect of those matters that were determined in favour of the Crown.
The second authority referred to by senior counsel for the Council is Borg v de Vries (Trustee) in the matter of the Bankrupt Estate of David Morton Bertram (No 2).[9] White J observed that the Federal Court had previously stated on more than one occasion that an order for costs should only be made in a case where the Court has not determined a claim on its merits in very exceptional circumstances. His Honour also noted that the presumptive position under the Federal Court Rules is that in the absence of any contrary court order a party filing a notice of discontinuance is liable to pay costs. When exercising the discretion as to whether a contrary order should be made, the Court generally has regard to the conduct of the parties and the reasons for the discontinuance.
[9] [2019] FCA 227.
White J referred to the observation by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin[10] that if both parties have acted reasonably in commencing and defending a matter and their conduct continued to be reasonable until settlement, or until further proceedings became futile, the Court would generally make no order as to costs. White J concluded with the observation that the courts are unwilling to conduct what is effectively a de facto trial for the sole purpose of determining costs.
[10] (1997) 186 CLR 622 at 624.
Discussion
In support of its rather faintly pressed contention that the Commissioner and Minister should be required to pay the Council’s costs in the period prior to 1 June 2021, the Council has referred to my observation at [264] of the primary judgment that the Commissioner had in effect acknowledged that there might be problems with his earlier decision and therefore arranged for Mr Buckerfield to make a fresh decision. I concluded [264] with the observation that the Commissioner had asked for his decision to be reconsidered “in light of the considerable body of fresh information”. I did not intend to suggest that the Commissioner had conceded that his earlier decision was in any way invalid. As there was no finding that the decision made by the Minister in August 2020 and by the Commissioner in December 2020 were invalid in any respect, I reject the Council’s (faintly pressed) claim to be awarded costs in its favour for the period prior to 1 June 2021.
In essence, the first application was founded on three contentions. The first contention was that the Commissioner did not have the care, control and management of the median strip in The Parade. It was therefore said that both he and the Minister respectively lacked the necessary statutory power to authorise and fund the works and interfere with traffic control devices (i.e. traffic lights and the median strip). The second contention was that the impugned decisions were void due to a failure to accord procedural fairness. A third contention was that the relevant decisions were vitiated by legal unreasonableness due to the failure to accord procedural fairness and also because no reasonable decision maker could have approved the works without knowledge of the number of vehicles likely to be prevented from entering the Developers’ car parks if the Council’s preferred proposal were to be implemented. These three contentions were ultimately abandoned or presented on a substantially different basis in later iterations of the application for review.
The contention that the Commissioner did not have the care, control and management of the median strip remained in the second application but was abandoned in the third and final application. I noted at [132] of the primary judgement that the Council conceded that the Commissioner had power to conduct the proposed works in the median strip. Clearly, the Council now accepted that the Commissioner did have the care, control and management of the median strip. The different contention unsuccessfully pursued at trial was that the Commissioner could not authorise the Developers to undertake work on the median strip.
It was a central element of the reasoning in my judgment that the Commissioner did have care, control and management of the median strip and could authorise the Developers to undertake work at that location. For that reason, I consider that the principle that a court should not award costs in respect of a matter that has not been determined on its merits does not apply in this instance.
The alleged failure to accord procedural fairness due to a breach of the hearing rule that appeared in the first and second applications was abandoned in the third application. The alleged denial of procedural fairness pleaded in the third application was based upon on an assertion that there was a reasonable apprehension of bias. The Minister and the Commissioner accepted that the procedural fairness requirement applied to the decision made by Mr Buckerfield but denied the bias allegation.
The concession that the procedural fairness obligation applied to Mr Buckerfield’s decision must necessarily extend to the earlier decision about the same subject made by the Commissioner. The bias rule and the hearing rule comprise the two limbs of the procedural fairness obligation. Thus, the Commissioner had effectively accepted that he was obliged to allow the Council a reasonable opportunity to be heard prior to making a decision adverse to its interests. However, the Court has not determined whether that requirement was satisfied by the consultations (apparently limited) that occurred between August and December 2020. For that reason, the principle that a court should not award costs in respect of a matter that has not been determined on its merits applies to the allegations in the first and second applications that there was a breach of the hearing rule by the Commissioner.
Whether the Minister was required to accord the Council procedural fairness before deciding to provide funding to the Developers is less certain. While there was very probably no such obligation in relation to the grant of funding to the Developers as an exercise of a non-statutory prerogative power,[11] the funding decision was made solely to enable the works at the Intersection. In that sense the funding decision directly affected the interests of the Council and might arguably attract a right to be heard. Be that as it may, the Court has not determined this issue. That must be taken into account when I determine costs.
[11] L v State of South Australia (2017) 129 SASR 180 at [129] (Kourakis CJ with Parker and Doyle JJ agreeing).
I have already dealt with the bias aspect of the contention in the first application that the impugned decisions were legally unreasonable. The second aspect of the unreasonableness contention is that no reasonable decision maker could have made such a decision without information about the effect upon usage of the Developers’ car parks. That contention was retained in the second application but abandoned in the third application. As it was not necessary for the Court to rule on this question, that is relevant to the award of costs.
The third application was concerned with the decision very recently made by Mr Buckerfield. The statutory interpretation arguments were somewhat more developed than in the second application. Nevertheless, both the second and third applications focused quite heavily upon an alleged lack of statutory power to damage, destroy or interfere with trees located in the median strip and an alleged trespass. In both instances contentions were advanced as to the effect of s 26A of the Highways Act 1926 (SA) on the powers conferred upon the Commissioner under s 26(6) of that Act and an argument was advanced that the latter powers were only exercisable for road safety purposes. Both the second and third applications also advanced arguments as to the effect and operation of s 221(1) and 224 of the LGA and the lack of availability of powers under Chapter 11 of the LGA. The Court rejected the various contentions advanced by the Council.
The apprehension of bias alleged in the third application was founded upon the subordinate relationship of Mr Buckerfield to the Commissioner in the departmental hierarchy and the fact that the Commissioner, Minister and Premier had each previously committed to the impugned works being performed at the Intersection. The basis upon which the apprehension of bias was said to arise was clearly quite different to that alleged in the two earlier applications.
While the third application, like the two earlier versions, alleged invalidity on account of legal unreasonableness, it did so on a quite different basis, i.e. the alleged failure by Mr Buckerfield to identify precisely the conduct that he had approved and his lack of knowledge about the detail of the proposed works when he granted approval.
Conclusion
As the Council did not succeed in any element of the proceedings, I have rejected at [46] its application to be awarded costs for the period prior to 1 June 2021.
I take into account that the Court did not decide the allegation contained in the first and second applications that the impugned decisions were legally unreasonable due to a failure to accord procedural fairness. I also take that into account that the Court did not decide the closely connected allegation of legal unreasonableness contained in the first and second applications that was founded upon the alleged breach of the hearing rule which was said to give rise to a reasonable apprehension of bias. I take the same approach with the allegations in the first and second applications that the impugned decisions were legally unreasonable due to a lack of information about the effect of the Council’s preferred decision on usage of the Developer’s car parks and on account of the alleged apprehension of bias.
For the reasons I have given at [49] above, I consider it appropriate that the Council be held liable to meet the costs of the Commissioner in so far as it was contended that the Commissioner did not have care, control and management of the median strip.
While only one of the three broad contentions advanced by the Council in the first statement of claim was decided against the Council, it is quite apparent that a great deal of the work done on behalf of the Commissioner in relation to the first application would have informed their defence to the second and third applications and played a very significant part in the arguments advanced at trial. Furthermore, it is clear that the Commissioner and Department undertook a massive discovery exercise and would have needed to undertake extensive work in obtaining instructions. While the Court has been informed that very few of the discovered documents were relied upon by the Council, the documents disclosed by way of discovery in response to the first application would apparently have remained relevant to the second and third applications as would have the instructions provided.
Thus, even if the first and second applications had never been filed, much the same would work have been undertaken on behalf of the Commissioner in responding to the third application. I take that fact into account when determining costs. I do not do so in relation to the question of quantum (which is a question for adjudication by a Master should the need arise) but in determining the apportionment of liability having regard to the fact that certain of the contentions pleaded in the first and second applications were not decided by the Court. My point is that the greater part of the work performed would have been necessary in response to the third application even if the first and second applications had not been lodged.
Because the Court did not decide the validity of the decision by the Minister to grant funding to the Developers, and no other decision of the Minister was impugned, a decision that no costs should be awarded to the Minister would be consistent with the authorities referred to at [39] to [45]. On the other hand, the decision to provide funding to the Developers to enable them to carry out the works at the Intersection using the Commissioner’s statutory powers was a fundamental element of the project agreed between the Developers and the Minister on behalf of the Government. Because the use of the Commissioner’s powers was found by the Court to be valid, and the attack on the funding decision was abandoned, the project withstood challenge. For that reason, I have given careful thought as to whether the Minister should be awarded costs on the same basis as the Commissioner. On balance, I have concluded that the very exceptional circumstances referred to by White J in Borg v de Vries have not been established. I therefore decline to award costs in favour of the Minister, whether before or after 1 June 2021.
In all the circumstances, it is necessary to adopt a broad-brush approach in apportioning costs for the period prior to 1 June 2021. I order that the Council is required to pay 85 per cent of the costs incurred by the Commissioner prior to 1 June 2021 on a standard basis. I also order that the Council pay 100 per cent of the costs incurred by the Commissioner on or after 1 June 2021 on a standard basis.

In accordance with the agreement reached between the Developers and the Council, I make no order as to costs between those parties.

[2021] SASC 131

17 November 2021