Forsyth v Wilesmith (No 2)

[2008] NSWLEC 260

Land and Environment Court

of New South Wales

CITATION:

Forsyth and Anor v Wilesmith and Ors (No 2) [2008] NSWLEC 260

PARTIES:

APPLICANTS
John Alfred Forsyth
Roslyn Kim Fitness

FIRST RESPONDENTS
Paul Wilesmith
Deborah Sharon Wilesmith

SECOND RESPONDENT
Wyong Shire Council

FILE NUMBER(S):

40204 of 2008

CORAM:

Pain J

KEY ISSUES:

Costs :- exercise of discretion to award costs where multiple respondents in judicial review proceedings

LEGISLATION CITED:

Uniform Civil Procedure Rules 2005 Pt 42 r 42.1

CASES CITED:

Cutcliffe and Anor v Lithgow City Council and Ors (2006) 147 LGERA 330
Forsyth and Anor v Wilesmith and Ors [2008] NSWLEC 259
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 268
Latoudis v Casey (1990) 170 CLR 534
Oshlack v Richmond River Council (1998) 193 CLR 72

DATES OF HEARING:

10 September 2008

EX TEMPORE JUDGMENT DATE:

10 September 2008

LEGAL REPRESENTATIVES:

APPLICANTS
Mr M Fraser
SOLICITOR
P J Donnellan & Co

FIRST RESPONDENTS
Mr P Larkin
SOLICITOR
Conditsis & Associates Solicitors

SECOND RESPONDENT
Mr J Ayling SC
SOLICITOR
HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

10 September 2008

40204 of 2008 Forsyth and Anor v Wilesmith and Ors (No 2)

EX TEMPORE JUDGMENT

1 Her Honour: In Forsyth and Anor v Wilesmith and Ors [2008] NSWLEC 259 I dismissed the Applicants’ Class 4 proceedings. The issue of costs must now be determined. The usual order in Class 4 proceedings is that costs follow the event, and that is the provision in Pt 42 r 42.1 of the Uniform Civil Procedure Rules 2005 (the UCPR). Both Respondents seek their costs of the proceedings. The Applicants accept that the First Respondents should have their costs paid and I will so order. The issue that arises is whether the Second Respondent, the Council, should also have its costs paid.

2 The Applicants oppose such a costs order being made in the primary proceedings. The Council largely adopted the submissions of the First Respondents and made very short submissions as a result. While a Council officer swore an affidavit in the proceedings essentially annexing the Council file, this could have been provided in another manner such as informal discovery. There was no additional material provided by the Council in the proceedings. If costs are awarded the Applicants will be paying two Respondents for the same work.

3 There is a general obligation on the Council to file a submitting appearance relying on the observations of Biscoe J in Cutcliffe and Anor v Lithgow City Council and Ors (2006) 147 LGERA 330 at [27] - [29] where he refers to the obiter comments of Gaudron and Gummow in Oshlack v Richmond River Council (1998) 193 CLR 72 at 77-79. Biscoe J concluded at [29] that it is usually inappropriate for councils to actively defend their decisions where another active respondent is doing so unless there was a possibility of conflict between the respondents. Similar comments by Cowdroy J in Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 268 at [35] were also relied on.

4 The Council’s counsel argued that the statements of Gummow and Gaudron JJ in Oshlack are obiter and while they may have persuasive value are not widely applied. That is apparent in this Court where in most judicial review proceedings involving councils the council tends to appear as a contesting party. That is because councils have an interest in upholding their decision-making processes as a failure giving rise to legal error in this Court may result in a suit in negligence against them elsewhere. Further, issues often arise as in this case about how a particular council officer has handled a matter and the council not surprisingly wishes to have its processes upheld. The fact that argument was put by the First Respondents which could have been adopted by the Council simply reflects the order in which the Respondents were joined. The Council has conducted its case efficiently, having relied on the one affidavit of a Council officer annexing the Council’s file. It did not file any affidavits relevant to discretion such as the First Respondents and Applicants did.

Finding

5 There is some tension between cases such as Cutcliffe and Kindimindi which have relied on the obiter comments of Gaudron and Gummow JJ in Oshlack with the circumstance that local councils tend to contest judicial review proceedings rather than file a submitting appearance in such matters. Their Honours stated at [77] – [78]:

The appellant sought declaratory and injunctive relief to restrain the developer proceeding without a valid development consent. The Council is the authority which had granted the consent upon which the developer relied. In those circumstances, and also having regard to the earlier litigation, it might have been expected that the Council would submit to such order as the Court might make and that it would not become a protagonist, lest by doing so it endanger the impartiality it would be expected to maintain upon any subsequent applications to it which might ensue were relief granted to the appellant.

Two of the reasons for Council’s doing so are outlined in the Council’s submissions. Whether those reasons are reasonable to consider in relation to costs I have my doubts. In particular whether a successful judicial review action giving rise to the declaration of invalidity of a council decision and the possibility of a suit in negligence against a council I do not consider a material consideration in a consideration of costs which must consider the circumstances of the litigation.

6 I do not however consider that a broad legal principle has been established, such as the Applicants’ counsel suggested, that generally a local council should file a submitting appearance in judicial review proceedings of this type. Cutcliffe and Kindimindi on examination do not provide the basis for such a principle and a reading of them does not suggest that was the intention of the respective judges. Rather the judges referred to these matters as relevant to the exercise of their discretion on costs. The facts in Cutcliffe were quite different to the matter before me. A council had filed a submitting appearance two weeks before the hearing and the issue on costs was whether the applicants should get all their costs including for the hearing. Biscoe J held that they should. In Kindimindi a third party had commenced public interest litigation from which he derived no personal benefit and Oshlack was referred to in the course of determining costs on that matter. I consider that the role of the Council as a consent authority needs to be considered in light of the obiter comments in Oshlack as a relevant factor only, not a binding principle in this costs determination.

7 Each case must be considered on its own facts to determine whether the behaviour of a particular council in actively contesting a matter was reasonable so that its costs of doing so ought to be paid. The proceedings before me are usual private litigation between parties in judicial review proceedings in which the Council is a relevant party as its decision is under review. As the Court has wide discretion to determine costs under the UCPR it is appropriate that I consider whether the Council should have its costs awarded, as has occurred in other cases where there are multiple respondents.

8 While the Council was a necessary party it was able to adopt the submissions of the First Respondents on the main issue in the proceedings. It was unnecessary for the Council to rely on its alternative second argument and it did not take up court time in doing so, although the Applicants may have incurred some minimal legal fees in addressing that argument in their counsel’s further written submissions in reply. While the Council is to be commended for running its case efficiently, including relying on minimal evidence, it is not appropriate that the Applicants have to pay the costs of both Respondents in circumstances where they wished to make the same arguments. The Council’s file could have been put before the Court without the need for a Council officer’s affidavit. It is appropriate that the Court consider such matters on costs as a means of encouraging respondents in proceedings of this type to avoid duplication of argument and the costs of preparing it. While costs are compensatory (Latoudis v Casey (1990) 170 CLR 534), weighing up all these factors I do not consider the Council should have its costs paid.

Orders

9 The Court makes the following orders:

1. The Applicants must pay the First Respondents’ costs as agreed or assessed.

2. The Second Respondent must bear its own costs.