Howlin v Brinckman (No 2) - [2007] TASSC 100

[2007] TASSC 100

CITATION: Howlin v Brinckman (No 2) [2007] TASSC 100

PARTIES:  HOWLIN, Darryl Robert
  HOWLIN, Helen Lorraine
  v
  BRINCKMAN, Margaret Helen

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  523/2005
DELIVERED ON:  10 December 2007
DELIVERED AT:  Hobart
HEARING DATE:  15 November 2007
JUDGMENT OF:  Slicer J

CATCHWORDS:

Procedure – Costs – Departing from the general rule – Public duty involved – Matter of general public interest – Successful plaintiff not exempt from paying costs.

R (on the Application of Godmanchester Town Council) v Secretary of State [2006] 2 All ER 960; Downie v Sorell Council [2005] TASSC 74, referred to.
Aust Dig Procedure [586]

REPRESENTATION:

Counsel:
           Plaintiffs:  A C R Spence
           Defendant:  G L Sealy
Solicitors:
           Plaintiffs:  Page Seager
           Defendant:  Simmons Wolfhagen

Judgment Number: [2007] TASSC 100
Number of paragraphs: 14

Serial No 100/2007
File No 523/2005

DARRYL ROBERT HOWLIN and HELEN LORRAINE HOWLIN
v MARGARET HELEN BRINCKMAN (NO 2)

REASONS FOR JUDGMENT SLICER J

10 December 2007

The plaintiffs, by action, successfully sought a declaration that certain land owned by the defendant had by dedication and use become a public highway (Howlin v Brinckman [2007] TASSC 59). The action named Mrs Brinckman as the sole defendant. The plaintiffs did not seek to name as parties the Attorney-General or any public authority. During the course of pre-trial procedures, identified interested parties were notified of the existence of the proceedings but none sought to be joined as parties or to take part in a more limited way in the hearing. Significantly the Council of the Municipality of Clarence, the relevant local authority, declined an opportunity to be heard on the matter.

The history of the matter, the surrounding circumstances, and the basis on which the declaration was made, are stated in the primary reasons for judgment and require no repetition.

The plaintiffs brought the action for personal and commercial gain. They, and other adjoining landowners, already had a right of way over the portion of land owned by the defendant. They wished to subdivide their own land for development and sale. They were permitted to do so, but the number of lots permitted for subdivision was limited if the land over which access was required remained subject to rights of way. A declaration that the land had become a public highway permitted a significant increase in the number of allotments which could be developed and sold, to the financial advantage of the plaintiffs. No criticism is, or ought be, made of either plaintiff in the seeking of a declaration. However the action resulted in the transformation of a limited or series of private rights to a public right to the advantage of the plaintiffs and the detriment of the defendant. In the course of legal argument, counsel for the plaintiffs contended that the action ought not be regarded as akin to a "public interest case", but more as one between the parties. In part he is correct, but the position adopted by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Howlin v Brinckman (No 2)

Details

AGLC: Howlin v Brinckman (No 2) [2007] TASSC 100
Case: [2007] TASSC 100
Decision Date: 10 December 2007

CaseChat Overview and Summary

The case of Howlin v Brinckman (No 2) involved a dispute between the parties in the Federal Court of Australia. The primary issue was the determination of costs in the context of a legal action, specifically whether the successful party should be exempt from paying the costs of the losing party. The case arose out of a public interest matter where the plaintiff had successfully sued the defendant, but the plaintiff sought to avoid paying the defendant's costs despite winning the case.

The central legal issue before the court was whether the general rule that the losing party must pay the winning party's costs should be departed from in circumstances where the matter involved a public duty and was of general public interest. The court had to consider whether the successful plaintiff could be exempted from the usual obligation to pay the defendant's costs, given the nature of the litigation.

The court held that the general rule regarding costs should not be departed from in this instance. The judge emphasised that while the matter was of public interest, it did not automatically exempt the successful party from paying costs. The court ruled that the plaintiff, despite being successful, was not exempt from paying the defendant's costs. The reasoning was grounded in the principle that the successful party should not be relieved of the financial burden of litigation simply because the matter involved a public duty or was of general public interest.

The final orders of the court mandated that the plaintiff pay the defendant's costs, thereby affirming the applicability of the general rule in this context. This decision underscored the importance of adhering to established legal principles concerning costs, even in cases of significant public interest.

Orders