Hansell v Local Land Board
[2000] NSWSC 341
•20 April 2000
CITATION: Hansell & Ors v Local Land Board & Ors [2000] NSWSC 341 CURRENT JURISDICTION: Common Law
Administrative Law ListFILE NUMBER(S): SC 30021 of 2000 HEARING DATE(S):
17 April 2000JUDGMENT DATE: 20 April 2000 PARTIES :
Ronald Keith Hansell, Rosemary Patricia
Hansell & Bradley John Hansell (Plaintiffs)
v
Local Land Board (First Defendant)
Frank Sposari & Megan Gladys Sposari
(Second Defendants)
JUDGMENT OF: Master Malpass
LOWER COURT
JURISDICTION :Local Land Board LOWER COURT
FILE NUMBER(S) :N/K LOWER COURT
JUDICIAL OFFICER :Chairperson: T.J.McCue, Members: L.N.Fletcher, V.R.Hardy
COUNSEL : N/A (Plaintiffs)
N/A (First Defendant)
N/A (Second Defendants)SOLICITORS: Burrell Solicitors (Plaintiffs)
Crown Solicitor - I V Knight (First Defendant)
Harrington Maguire & O’Brien (Second
Defendants)
CATCHWORDS: Appeal from order of Board on question of costs - application of guideline as to costs in fencing work cases - no error in point of law. LEGISLATION CITED: Crown Lands Act 1989, s 24, Schedule 2
Dividing Fences Act 1991, s 12, s 14, s 19, s 23.
Supreme Court Act 1970, s 76.
Supreme Court Rules 1970, Part 52A rule 11.CASES CITED: Latoudis v Casey 170 CLR 534.
Norbis v Norbis 161 CLR 513.
Oshlack v Richmond River Council 193 CLR 72.DECISION: See paragraph 27.
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LISTMASTER MALPASS
THURSDAY 20 APRIL 2000
30021 OF 2000 RONALD KEITH HANSELL & ORS v LOCAL LAND BOARD & ORS
JUDGMENT
1 The plaintiffs and the second defendants are neighbours. They were not on good terms. The plaintiffs wanted to erect a dividing fence on a common boundary separating their respective properties. Initially, at least, the second defendants did not want a fence.
2 The plaintiffs made application to the Local Court for relief pursuant to s 12 of the Dividing Fences Act 1991 (the Act). The application was transferred and it came before a Local Land Board (the Board) on 7 March 2000.
3 The Board is constituted under provisions of the Crown Lands Act 1989. Schedule 2 thereto has effect with respect to the powers and procedures of the Board (s 24).
4 There were negotiations which failed to lead to a resolution of the dispute. The Board then heard and determined the application (after a site inspection). Orders were made under s 14 of the Act. An order was made that each party pay his or her own costs of the proceedings.
5 The plaintiffs were not wholly successful. The second defendants had some success on the issues agitated in the application.
6 The plaintiffs had legal representation. Mr Burrell appeared before the Board. The second defendants were not legally represented. Mr Burrell unsuccessfully submitted that an order for costs should be made against the second defendants.
7 These proceedings were commenced by Summons filed on 4 April 2000. The Summons brings an appeal against the decision made by the Board on the question of costs. It enumerates five grounds on which the appeal is brought. It is common ground that the right of appeal is restricted to error “in point of law” (s 19 of the Act). The Act provides that any order is to be otherwise final.
8 The appeal was heard on 17 April 2000. Mr Burrell appeared for the plaintiffs. Mr O’Brien appeared for the second defendants.
9 The plaintiffs have relied on two affidavits and Exhibit A. The second defendants did not tender any material.
10 The court has before it inter alia a copy of the application, a copy of the decision of the Board and a copy of what was considered to be the relevant portion of the transcript.
11 It is common ground that the Board had a discretion to award costs against a party (s 23 of the Act provides inter alia that the Board “may award costs against either party” and Schedule 2 contains a similar provision).
12 Also, it is common ground that the Board has a policy or normal rule as to costs in the exercise of its jurisdiction in fencing work matters. What in fact it is has to be deduced from what appears in the transcript. Whilst the general thrust of it is clear enough, the entirety of the content thereof is somewhat lacking in precision and certainty. The policy or normal rule has been variously expressed in the transcript. It was said that the Board’s normal rule is that each party pay their own costs, unless there are very good reasons to do otherwise. Also, it was said that it is Board policy not to award costs, other than in very unusual circumstances.
13 The transcript does contain an expression of the rationale behind the policy or normal rule. Whether or not this expression accurately reports the rationale is unknown. It may be that the rationale has been expressed with more precision and certainty elsewhere and that it could have been better expressed in this case. In any event, it seems to me that the court should look to the substance of what has been recorded (as opposed to giving it a too literal construction).
14 What is recorded appears to contemplate regard being had to inter alia the nature of the jurisdiction exercised by the Board and of the disputes left to be determined by it. There was reference to parties having adopted fixed views or fixed positions by the time they came before the Board and there being no real winner or real loser in such proceedings. There was reference in effect to the Board having to determine what fencing work had to be done.
15 The plaintiffs contend that the policy or normal rule has no formal status. The question of whether or not there is some practice note or formal statement as to this policy or normal rule has not been fully argued. If it does have some formality, the relevant material is not before this Court. It may well be simply the product of various decisions made by the Board. If this be the case, the lack of any other formality would not seem to be a matter of any importance. Whatever be the position, if there was other relevant material, the placing of it before the court would have been helpful.
16 The policy or normal rule can be regarded as a guideline for the exercise of the discretion as to costs. There is nothing to suggest that it binds the decision of the Board in individual cases. It is probable that such a guideline has been regarded as appropriate in the light of a number of considerations. I have earlier referred to certain matters (see paragraph 14). It appears that the Board, whilst accepting that there will be other cases, may see its role as generally resolving an impasse between neighbours by effecting practical compromise of conflicting interests. It could be expected that many litigants (if not the majority) may be unrepresented. The adoption of a guideline rule aids the satisfaction of the need for consistency ( Norbis v Norbis 161 CLR 513 at 519).
17 In argument (both oral and written), there has been reference to various authorities (including Latoudis v Casey 170 CLR 534 and Oshlack v Richmond River Council 193 CLR 72). The challenge made on behalf of the plaintiffs seemed to change course somewhat during the presentation of their case. Initially, the principal basis of the appeal was said to be a failure to exercise the discretion judicially (inter alia it was said that the Board fettered the exercise of the discretion by applying the policy or normal rule without having regard to all of the relevant circumstances). It was their case that they were the winners in the litigation and that costs should have followed the event. It was also said that the Board made error in its findings and wrongly took that error into account. Later, as well, there emerged a direct challenge to the policy itself.
18 An opportunity was given to supplement oral submissions by writing. The plaintiffs have provided written submissions of some considerable length. This material in some respects fell outside the scope of what had been contemplated by the court. It also saw the introduction of fresh argument which had not been ventilated either during the hearing or before the Board.
19 In considering the merits of this appeal, the starting point is that the onus rests with the plaintiffs. The plaintiffs must demonstrate some basis for the disturbing of the order made by the Board. The basis is restricted to an error in point of law.
20 In this Court, the making of orders as to costs is governed by provisions contained in both the Supreme Court Act 1970 and the Supreme Court Rules 1970 inter alia (Part 52A rule 11). Rule 11 stipulates the approach to be taken by the court. Whilst costs remain in the discretion of the court (s 76), except where it appears to the court that some other order should be made, costs follow the event. Generally speaking, this enshrines the position as it was at common law (where regard was had to what is often referred to as the “traditional” or “ordinary” rule of costs following the event). This rule operated by way of a principle of guidance. It did not confine the discretionary exercise which had to be performed in each individual case. In some other jurisdictions (such as the Land and Environment Court) guidelines may be found. In that court there is a guideline for the non-awarding of costs in certain cases (see Practice Direction 10).
21 Generally speaking, the relevant principles are non-controversial. A discretionary power to award costs is to be exercised judicially. The court or tribunal is to have regard to all of the relevant circumstances of the particular case before it and to exercise the power so that justice is best served between the parties. Each case will turn on its own particular facts.
22 The discretion to be exercised in this case is not the subject of any express prescription. Its width is left at large. Whilst the discretion is of an unconfined nature, it does not follow that the formulation of a principle or guideline according to which the discretion is to be exercised would constitute a fetter upon the discretion ( Latoudis at 541).
23 I am not satisfied that a guideline in the nature of what appears to have been applied by the Board operates as a fetter on the discretion conferred by either s 23 of the Act or schedule 2. Whilst it has not been argued, the language of these provisions affords some support for the guideline. They are capable of a reading consistent with a guideline which sees the awarding of costs against a party as not being a matter of general incidence. The provisions are of an enabling nature and confer a discretion as to whether or not an award or order as to costs should be made against a party.
24 I have carefully considered all the arguments put by Mr Burrell (in particular I have had regard to all of the grounds set forth in the Summons). For present purposes, I have put aside the consideration of whether or not the plaintiffs should now be allowed to rely on some of them. I am not satisfied that the plaintiffs have demonstrated any error in point of law and/or any error in point of law which would justify the disturbing of the decision made by the Board on the question of costs.
25 The Board brought the existence of its policy or normal rule to the attention of the plaintiffs. It allowed the plaintiffs to put their submissions on the question of costs. These were put on the basis of an assumption that the policy or normal rule did not fetter the discretion. It retired and considered those submissions (in particular the submissions made to the effect that the plaintiffs were the successful parties and that they should not be disadvantaged because they had engaged legal representation).
26 In my view, the Board made a decision which was open to it on the material placed before it. I am not satisfied that it did not have due regard to all of the relevant circumstances. I am not satisfied that it made and/or took into account an erroneous finding. It is of no moment, if it be the case, that a different view may have been taken by another court or tribunal.
27 Accordingly, I dismiss the Summons. The plaintiffs are to pay the costs of the Summons. The Exhibit may be returned.
**********
0
0
4