Groeneveld v Wollongong City Council

[2009] NSWSC 1275

CITATION:	Groeneveld v Wollongong City Council [2009] NSWSC 1275
HEARING DATE(S):	30 October 2009
JUDGMENT DATE :	30 October 2009
JURISDICTION:	Equity
JUDGMENT OF:	Slattery J at 1
EX TEMPORE JUDGMENT DATE:	30 October 2009
DECISION:	Order that the plaintiff pay the defendant's costs of these proceedings as agreed or assessed.
CATCHWORDS:	PROCEDURE - costs - application of general rule that costs follow the event - no basis demonstrated to displace the application of the general rule
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) s 98 Legal Profession Act 2004 (NSW) Part 3.2 Roads Act 1993 (NSW) Uniform Civil Procedure Rules 2005 r 42.1
CATEGORY:	Principal judgment
CASES CITED:	MacDougall v Curlevski (1996) 40 NSWLR 430
PARTIES:	Plaintiff: John Groeneveld Defendant: Wollongong City Council
FILE NUMBER(S):	SC 1456/09
COUNSEL:	Plaintiff: Mr John Groeneveld (Self Represented) Defendant: Ms F Berglund
SOLICITORS:	Plaintiff: Mr John Groeneveld (Self Represented) Defendant: Kells The Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

FRIDAY 30 OCTOBER 2009

1456/09 JOHN GROENEVELD v WOLLONGONG CITY COUNCIL

JUDGMENT

1 HIS HONOUR: These proceedings were heard before me on 25 May 2009. I gave judgment in the matter on 23 June 2009. In that judgment I dismissed the plaintiff's claim. I reserved the question of costs.

2 In a short hearing today the reserved issue of costs has been argued by Ms Berglund on behalf of the defendant Council. Mr Groeneveld, the plaintiff again appeared in person.

3 The parties have acknowledged the applicable principle that although the Court has a broad discretion to make orders in respect of costs, in the interests of justice the usual principle is that costs follow the event. The usual result is therefore that the unsuccessful party pays the costs of the successful party, unless it appears that some other order should be made. The Court’s powers to make costs orders are found in s 98 Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 (UCPR) r 42.1. These provisions are relevantly as follows:

“Civil Procedure Act 2005, s 98

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.
Uniform Civil Procedure Rules 2005, r 42.1

42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.”

4 The question here is whether or not costs should follow the event in accordance with the normal rule, as the defendant submits, or whether there is some basis to make a different order, as the plaintiff submits.

5 Ms Berglund in her written submission contends that the defendant has not engaged in any disentitling conduct and that therefore costs should follow the event. She points to the content of the correspondence attached to an affidavit of Mark Cottom sworn 20 May 2001 showing the assistance the defendant has given to the plaintiff. She submits that this correspondence advised the plaintiff of a stay that the Department of Lands on the processing of the road closure application placed at the defendant's request, and further advised of the defendant’s withdrawal of that application and finally advised the plaintiff to discontinue the proceedings. The Council warned him that if it was successful in defending his claims, the Council would seek costs against him. The Council submits that the defendant has conducted itself responsibly in a way which does not disentitle it to the costs which would normally follow the event.

6 Mr Groeneveld has also put a written submission before me to advance his position on costs. He says that the ordinary rule that costs follow the event should not be applied here. He says that when the defendant requested the Department of Lands temporarily to stop processing the road closure, there was no Council decision on foot that he could object to and that the defendant directed the Department of Lands to stop and restart the processing of the road sale on two separate occasions. Mr Groeneveld's written submission on the merits as to why the Court’s costs discretion should be exercised against him is set out below.

7 Paragraphs 3, 4, and 5 of Mr Groeneveld's written submissions capture the essence of his argument:

“3. In regard to this matter, the Plaintiff submits that there are unusual circumstances that would allow departure from the usual principle of Costs following the event as outlined in the Civil Procedure Act of 2005. The Plaintiff maintains that due to the conduct of the Defendant prior to the hearing of 25 May 2009, a just resolution of the issues in contention was unattainable.
4. The unusual circumstances are outlined below:

a) The Defendant kept maintaining that by requesting the Dept of Lands to temporarily stop processing the Road sale, there was no decision on foot that we could object to. The facts are that the Defendant directed the Dept of Land to stop and restart the processing of the Road sale on two separate occasions.

b) If the Defendant had been allowed to continue processing the Road closure and subsequent sale unabated, that action would have been irreversible. This fact was agreed by all parties during the hearing of 25 May 2009.

c) Solicitors and Lawyers, acting for the Plaintiff, had written letters to the Defendant to reverse the decision, as early as 24 ^th February 2005, but to no avail.

d) As late as 15 January the Plaintiff met with the Council’s Internal Ombudsman, Karne Apps, explained the situation with her. She approached department heads in an effort to mediate a solution and they refused to talk about it with her.

e) Once in the Supreme Court the Registrar informed the Plaintiff that the Minister for Lands would need to be added in as second Defendant. Once this was done the Defendant, now under pressure from the Minister instructed the DOL to withdraw the advertising of the road closure, but only until the LEC proceedings were over.

f) Up to this point, the Plaintiff had persistently sought resolution of the issues, but the defendant would only postpone the sale of the road until the Land and Environment Court had made their decision. Only after hearing your protests the perpetrator says he will remove the bullets, but he still points the rifle in your direction, and he can reinsert the bullets anytime he wants. That’s how we felt about the threats to our established rights.

g) During the above mentioned events the Elected Council were being investigated by ICAC and were subsequently removed and replaced by administrators. The staff that made the earlier decisions and recommendations, had perfect opportunity to overturn the corrupt Council’s decision, and yet they refused to do so.

h) The plaintiff had prepared a series of questions to ask Ms Rose Cronin, the Defendant’s property officer involved in the above mentioned decision, and after a subpoena was served, her costs reimbursed for travel to the court for the hearing of 25 May 2009, the Plaintiff was not allowed to cross-examine the witness.
5. It seems that if the Plaintiff waited until the road closure but had been formally advertised in the local newspaper, and then instigated the proceedings for injunctive relief, the court may have viewed the issues differently.”

8 The matters put by the plaintiff supporting a favourable exercise of the Court’s costs discretion, can be divided into three categories. Of the matters Mr Groeneveld puts, first there are some matters which are irrelevant to the question of costs. Second, there are some matters which occurred at the very time the proceedings were commenced. Third, there are some matters relevant to the conduct of the proceedings after their commencement. I will deal with each of these in turn.

9 First, I will deal with the matters raised by Mr Groeneveld in his written submission which appear to me to be irrelevant to the costs discretion. There are several of these. In sub-paragraph 4(g), Mr Groeneveld developed a submission about the investigation of the elected Council by the Independent Commission Against Corruption (ICAC). He raises the issue of the replacement of the Council by an administrator. He submits that the staff that had made the earlier decisions and recommendations on this road closure application had a perfect opportunity to overcome “the corrupt Council's decision” and yet they refused to do so.

10 During the principal hearing Mr Groeneveld sought to tender part of an ICAC report into the affairs of the Council. I excluded this evidence. This ICAC report extract appeared to be irrelevant to the issues joined between the parties. There was no evidence that any conduct by any person named in the ICAC report caused Council to make the particular decision of which Mr Groeneveld complains. For that reason, the ICAC report and the part of his submission that deals with that issue seems to me also to be wholly irrelevant to the costs discretion that I must now exercise.

11 There are other matters referred to in the written submissions such as those in subparagraph 4(f) and 4(h) that fall into a similar category. They are all matters which, in the case of subparagraph 4(f) were not matters that were before the Court, or otherwise involve speculation.

12 Subparagraph 4(h) of Mr Groeneveld’s submission relates to Ms Rose Cronin's possible evidence in the proceedings. For the reasons that the transcript shows at the time, I was not prepared to allow her to be cross-examined. That procedural ruling was made during the hearing. Of course, it is Mr Groeneveld's right to question that ruling in any appeal that he wishes to bring against my determinations in these proceedings. Her evidence is not now before me. Ms Rose Cronin's rejected evidence cannot now be taken into account in the Court’s current exercise of the costs discretion. This deals with the matters that I judge are irrelevant to the exercise of my costs discretion.

13 The two remaining categories raised by Mr Groeneveld in his submission relate to circumstances either at the time the proceedings commenced or later during the course of the proceedings.

14 At the time the proceedings were commenced, Mr Groeneveld points out in subparagraph 4(d) of his submission, that he approached the Council's internal ombudsman to attempt to mediate a solution. He asserts in his submission that the Council refused to mediate.

15 I have no direct evidence to ground the assertion that that approach was made. All I have is Mr Groeneveld’s submission. Whether the Council did or did not refuse to mediate does not affect the question of costs in these proceedings. If Mr Groeneveld commenced proceedings which were ultimately found to be bad in law, the fact that the Council did not wish to negotiate before they were commenced should not itself lead to a displacement of the normal ruling that costs should follow the event.

16 One difficulty for Mr Groeneveld’s submissions about the events at the time of the commencement of these proceedings is a letter of 11 February 2009 that the Council sent to Mr Groeneveld the day before the proceedings were commenced. Once the Council’s solicitors found out that the proceedings were to be commenced, they asked for an opportunity to be heard. It is clear from this letter that Mr Mark Cottom, the solicitor for Kells acting for the Council, had a telephone conversation with Mr Groeneveld at 3.30pm on 11 February 2009. Mr Cottom recorded the information Mr Groeneveld gave him on this occasion. Mr Groeneveld communicated that it was his intention to approach the duty judge at the Supreme Court at 9.15am the following day, 12 February 2009. The part of Mr Cotton's response now relevant to costs was set out in the last two paragraphs of his letter. Those paragraphs are reproduced below.

“If you are able to bring this matter before the Court tomorrow, our client would like an opportunity to be heard. That opportunity simply cannot be afforded tomorrow. Our client will not be appearing tomorrow.
So that our client can have opportunity to be heard by the Court should you commence any proceedings, please serve on us a sealed copy of the initiating process and supporting evidence within the timeframes provided by the Court’s rules before any application for injunctive relief is heard. We reserve our client’s right to tender this letter to the Court should an issue of costs arise in any proceedings.”

17 Those paragraphs make clear that Mr Cottom wanted an immediate opportunity to be heard. This might perhaps have brought the proceedings to an early resolution. Mr Cottom warned Mr Groeneveld in this letter that the commencement of proceedings and the possible failure to allow the Council an opportunity to be heard at the outset may have costs consequences for Mr Groeneveld. Nevertheless Mr Groeneveld proceeded. The plaintiff had clear early warning about the possibility of costs orders being made against him.

18 Mr Groeneveld has another argument about the Council’s conduct pre-hearing and at commencement. Mr Groeneveld submits that the Council was pursuing the road closure application right up until the proceedings were commenced. He submits that his commencement of proceedings focused the Council’s decision making and as a result either stopped or slowed down the process of closing the road. In the principal judgment I have found that there was no legal basis for Mr Groeneveld to stop the Council proceeding further with the application and that his rights really lie under the Roads Act 1993 (NSW) against the Minister.

19 This short term effect of commencing these proceedings is not an end in itself from which Mr Groeneveld can taken any comfort. The point Mr Groeneveld makes about the effect the proceedings may have had on the Council’s decision making processes, does not bear upon the present exercise of my costs discretion. Whatever may have been the short term effect of commencing the proceedings, they were always bad in law. They were a misguided attempt to stop the Council from progressing the road closure application further. The short term effect of commencing these proceedings is to be explained as the Council holding back and not wasting resources in case these proceedings were decided unfavourably to the Council. It was not any kind of “success” that should now be rewarded with an order for costs.

20 This leads then to the last category of Mr Groeneveld’s submissions, the question of the defendant's conduct during the proceedings. Sometimes the usual costs order in favour of a successful party can be displaced on grounds that the successful party has somehow behaved unreasonably or been guilty of misconduct in the proceedings thereby causing unnecessary costs to be incurred: MacDougall v Curlevski (1996) 40 NSWLR 430. Mr Groeneveld’s submissions attract this principle.

21 I do not think that this is a case where such an order grounded on the defendant’s misconduct could be made. My principal judgment in paragraph [39] identifies the many efforts that the Council has made since Mr Groeneveld commenced the proceedings to halt the road closure application and to accommodate Mr Groeneveld’s action in the Land and Environment Court:

“39 On several occasions in the correspondence between the parties and in the course of submissions, the defendant has made clear that it:

a) has delayed the taking of any steps on its road closure application until after the final determination of the Land and Environment Court proceedings;
b) would not request the Department or the Minister to take any steps in relation to the road closure application until the Land and Environment Court proceedings are finally disposed of;
c) had requested the Department not to take any steps in furtherance of the road closure application, including requesting that the advertising of the application scheduled for 13 February 2009 be withdrawn; and
d) would amend the road closure application to ensure that the plaintiff's proposed subdivision is not adversely impacted in any way in the event of the plaintiff’s appeal to the Land and Environment Court was allowed.”

22 An early response by Mr Groeneveld to the Council’s actions summarised in paragraph [39] of my principal judgment may have avoided the need for a final hearing. If Mr Groeneveld had accepted the position taken by the Council at an early stage he would have been able to pursue his action in the Land and Environment Court before the road closure occurred and without occasioning any prejudice to his conduct of the Land and Environment Court proceedings. Had the plaintiff taken advantage of the position being taken by the Council recorded, in paragraph [39] of my principal judgment, the hearing on 25 May 2009 may well have been unnecessary.

23 Nothing in the conduct of the Council has lengthened the proceedings, or occasioned extra costs, or in any way diminished the Council’s presumptive entitlement to its costs from having succeeded. The case was argued effectively and reasonably by the defendant, without the obvious incurring of excessive costs.

24 For all these reasons I see no basis to displace the usual order for costs that would be awarded in the Council’s favour following upon its success in achieving the dismissal of Mr Groeneveld’s action.

25 Finally, I have said to Mr Groeneveld in Court today that if I found against him on the issue of costs that the order I proposed to make was the order advanced by Ms Berglund for the defendant. That order is, "That the plaintiff pay the defendant's costs of the proceedings as agreed or assessed." From what Mr Groeneveld says, agreement as to costs may be unlikely. That does not stop this form of order being made. Mr Groeneveld will be protected by the law which provides that the only costs that can be awarded against him are those which are assessed and approved by an independent costs assessor under Part 3.2, Division 11 of the Legal Profession Act 2004 (NSW).

26 On the issue of costs assessment I would also point out that there was no appearance for the defendant on the preliminary hearing of Mr Groeneveld’s application before White J earlier this year. It is unlikely there would be any costs of that event on the Council’s side. It has also been acknowledged by the Council that its costs associated with these proceedings would arise either on the day the proceedings were commenced or only very shortly beforehand. It may assist Mr Groeneveld to know that limits the range of costs that the Council is able to claim in these proceedings.

27 I will therefore make the order I have foreshadowed. I order that the plaintiff pay the defendant's costs of these proceedings as agreed or assessed.

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