Erujin Pty Ltd v Department of Environment Regulation
[2018] WASC 53
•15 FEBRUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ERUJIN PTY LTD -v- DEPARTMENT OF ENVIRONMENT REGULATION [2018] WASC 53
CORAM: TOTTLE J
HEARD: ON THE PAPERS
DELIVERED : 15 FEBRUARY 2018
FILE NO/S: CIV 2095 of 2015
BETWEEN: ERUJIN PTY LTD
Plaintiff
AND
DEPARTMENT OF ENVIRONMENT REGULATION
Defendant
Catchwords:
Costs - Application for writ of mandamus - Proceedings unnecessary - Whether conduct of defendant unreasonable so as to justify an order for costs against it
Legislation:
Nil
Result:
Application for costs dismissed
Category: B
Representation:
Counsel:
Plaintiff: No appearance
Defendant: No appearance
Solicitors:
Plaintiff: Rowley Legal
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Grundy v Lewis [1998] FCA 563
Re MacTiernan; Ex Parte Aberdeen Nominees Pty Ltd [2004] WASCA 262
TOTTLE J:
Introduction
At about noon on Friday 17 July 2015 the plaintiff served an application for judicial review on the defendant. The plaintiff sought a writ of mandamus to compel the defendant to decide three clearing permit applications made by it under the Environmental Protection Act 1989 (WA) some 13 months or so earlier.
Shortly after the judicial review application was served the defendant notified the plaintiff of its decision to refuse the applications. The proceedings were redundant as the defendant had done the act that was sought to be commanded by the writ of mandamus.
At the first directions hearing held on 19 August 2015 the plaintiff advised the court that it intended to discontinue the application. By that stage the only step taken by the defendant in the proceedings was that it had filed a notice of appearance.
The application has not yet been discontinued.
The plaintiff applies for an order that the defendant pay its costs. The plaintiff submits the defendant acted unreasonably in 'failing or refusing to make a decision or to make a timely decision on the applications for clearing permits'. The defendant opposes the application. The defendant contends that there be no order as to costs, other than those of the application for costs.
On 15 February 2017 I published my reasons for decision in related judicial review proceedings in which the plaintiff challenged the defendant's decision to refuse the clearing permit applications. That decision has no bearing on the present application.
For the reasons that follow I consider that there should be no order as to costs in the substantive proceedings.
Relevant principles
The relevant principles can be shortly stated. A plaintiff that discontinues an application for judicial review would normally be liable to pay the defendant's costs: Re MacTiernan; Ex Parte Aberdeen Nominees Pty Ltd [2004] WASCA 262 [92] ‑ [93] (Miller J) citing the relevant principle set out in Grundy v Lewis [1998] FCA 563, 12 (Cooper J). In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should be entitled to the costs of the application. In this context, the yardstick of unreasonableness has been applied with the result that a plaintiff may be able to obtain the costs of the application if it can show that the defendant acted unreasonably in refusing to exercise a power, leaving the plaintiff with no reasonable alternative but to commence their application: Re MacTiernan; Ex Parte Aberdeen Nominees Pty Ltd [92] ‑ [93] (Miller J).
The facts
In support of its application for costs the plaintiff relies upon the affidavits of Mr Ian McKellar sworn on 5 September 2015 and Ms Linda Rowley sworn on 4 September 2015. Mr McKellar is employed by the plaintiff to project manage its application for clearing permits and Ms Rowley is the plaintiff's solicitor.
The defendant relies upon the affidavit of Ms Kerry Laszig sworn on 18 September 2015. Ms Laszig is employed by the defendant as the Director ‑ Licensing and Approvals.
As distilled from the affidavit evidence the relevant facts may be summarised as follows:
(i)On 27 June 2014 the plaintiff filed three applications for clearing permits in respect of vegetation on Lot 50, Plan 37908.[1]
[1] McKellar Affidavit [4].
(ii)By letter dated 23 September 2014 the defendant advised the plaintiff it was unlikely the clearing permits would be granted, enclosed Preliminary Assessment Reports for each application and requested a response by 20 October 2014.[2]
[2] Laszig Affidavit [8], KLJ3.
(iii)By letter dated 17 October 2014 the plaintiff requested that the defendant not make a determination for a period of 60 days to allow the plaintiff to make further submissions.[3] The defendant agreed to this request and sought a response by 23 December 2014.[4]
(iv)The defendant received the plaintiff's further submissions on 5 February 2015.[5]
(v)On 13 April 2015 the plaintiff wrote the defendant requesting a decision within 10 business days or written advice as to the timeframe for a decision within 5 business days. The plaintiff stated that if the defendant did not respond as requested, 'our client will have no option but to instruct its solicitors to apply to the Supreme Court seeking a writ of mandamus'.[6]
(vi)On 21 April 2015, in response to the plaintiff's letter of 13 April 2015, the defendant advised that the applications were 'with the Executive Director for review'.[7]
(vii)Mr McKellar deposes that in the week commencing 4 May 2015 he had his Planning Manager, Ms Kelly McKellar, telephone the defendant for an indication of when it would make a decision on the applications, and that she was advised by an officer of the defendant that a decision would be made by 11 May 2017.[8]
(viii)By letter dated 11 May 2015 officers of the defendant wrote to the plaintiff listing environmental issues that were not addressed by the plaintiff's further submissions received on 5 February 2014 and inviting the plaintiff to provide further advice by 29 May 2017.[9] By letter dated 21 May 2015 the plaintiff made submissions on various issues concerning the application.[10]
(ix)The applications were assessed by officers of the defendant in accordance with their quality assurance process on 10, 18 and 22 June and 6 July 2015.[11]
(x)Ms Laszig received the applications on or about 10 July 2015,[12] at which time she was the acting Executive Director ‑ Licensing and Approvals, and thus had delegated authority to determine applications for clearing permits.[13] Ms Laszig deposes that at about 10.00 am on 17 July 2015 she refused the applications and signed a letter to the plaintiff attaching the refusal decision.[14]
(xi)The application for judicial review was served on the defendant at approximately 12.10 pm on 17 July 2015.[15]
(xii)The plaintiff was notified of the refusal of the applications by email at 1.40 pm on 17 July 2015.[16]
[3] Laszig Affidavit [9], KJL4.
[4] Laszig Affidavit [10], KJL5.
[5] Laszig Affidavit [11]; McKellar Affidavit [10], IBM5.
[6] McKellar Affidavit [11], IBM6.
[7] McKellar Affidavit IBM7
[8] McKellar Affidavit [12], IBM7.
[9] Laszig Affidavit [15]; McKellar Affidavit IBM8.
[10] McKellar Affidavit IBM9; Laszig Affidavit [15].
[11] Laszig Affidavit [16], KLJ7.
[12] Laszig Affidavit [19]
[13] See ss 20 and 5 IE Environmental Protection Act 1989 (WA) and the delegation in the Laszig Affidavit[14] Laszig Affidavit [21], KJL9.
[15] Laszig Affidavit [22], KJL10; Rowley Affidavit [3].
[16] Laszig Affidavit KJL11; McKellar Affidavit [18]; Rowley Affidavit [5], LER1
Submissions
The plaintiff submits that the delay in determining the applications was inordinate: some thirteen months after the applications were lodged and over six months after the Department had received the last substantive communication from the plaintiff, being its February submissions. The plaintiff drew attention to the defendant's own practice which was for decisions to be made 90 days after an application is received. The plaintiff also submits that despite being on notice of the plaintiff's intention to bring judicial review proceedings from early May the defendant did not expedite the decision making process and did not make its decision for a further three months.
The defendant submits that the defendant gave the plaintiff notice of the adverse preliminary assessment report within 90 days, the applications were appropriately handled and that any delay was not unreasonable. The defendant also submits that given the history of correspondence between the parties it was unreasonable for the plaintiff to have brought proceedings before making further enquiries with the defendant about when a decision would be made. The defendant says if such an enquiry had been made the plaintiff would have found out that a decision was imminent.
Conclusion
I am not persuaded that the defendant acted so unreasonably as to be liable for the costs of the proceedings. This is so even though the defendant did not make its decision on the clearing permit applications for over 13 months. I have reached that conclusion for three reasons.
First, the commencement of proceedings was not as a matter of fact necessary to bring about the action that was sought to be compelled by writ. The relevant officer of the defendant deposed that she made the decision to refuse the applications and signed the cover letter to the plaintiff at about 10.00 am on 17 July 2015, about two hours before the application was served on the defendant. I am satisfied this was so.
Second, the conduct of the defendant was not so unreasonable as to warrant an adverse costs order for the following reasons:
(i)Balanced against the time taken for the defendant to make a final decision on the clearing permit applications is the fact that the defendant notified that the plaintiff of the adverse preliminary assessment report some 88 days after the applications were filed.
(ii)The plaintiff was itself responsible for delaying the decision for about 3 1/2 months. That is the time between its request for an extension of time to file further submissions in late October 2014 and the filing of those submissions on 5 February 2015.
(iii)Although some 5 1/2 months elapsed between the defendant receiving the plaintiff's further submissions on 5 February 2015 and the defendant making its decision on 17 July 2015, there is evidence of the applications being considered and progressed in an orderly, manner albeit that progress was slow. On 11 May 2015 the defendant requested further submission from the plaintiff. Once it received those submissions on 21 May 2015 the applications were put through a quality assurance process by the defendant. The delay between 5 February 2015 and 11 May 2015 is less satisfactory. The only explanation given by the defendant concerning the status of the applications during this period was that they were with the Executive Director for review. Although I do not consider this delay to be adequately explained, I do not consider that this period of delay alone is unreasonable.
Third, the commencement of proceedings could have been avoided had the plaintiff made further enquiries with the defendant. Having waited for almost two months from the time it last corresponded with the defendant before bringing its proceedings (that is, between its email on 21 May 2015 and serving its application on the defendant 17 July 2015), it is difficult to understand why the plaintiff did not take the simple precautionary step of a further enquiry about the state of the application. Had that step been taken the proceedings could have been avoided.
As the plaintiff has failed in its application for costs the ordinary rule as to costs should apply and it should pay the defendant's costs of the application to be taxed if not agreed.
Orders
The orders that I will make are as follows:
(i)There be no order as to costs concerning the application.
(ii)The plaintiff have leave to discontinue the application.
(iii)The plaintiff pay the defendant's costs of the plaintiff's application for costs.
[18], KJL8.
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