Howlin v Resource Management and Planning Appeal Tribunal
[2017] TASSC 19
•31 March 2017
[2017] TASSC 19
COURT: SUPREME COURT OF TASMANIA
CITATION: Howlin v Resource Management and Planning Appeal Tribunal
[2017] TASSC 19
PARTIES: HOWLIN, Darryl Robert
v
RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL
CLARENCE CITY COUNCIL
FILE NO: 3036/2016
DELIVERED ON: 31 March 2017
DELIVERED AT: Hobart
HEARING DATE: 14 March 2017
JUDGMENT OF: Blow CJ
CATCHWORDS:
Procedure – State and Territory courts: jurisdiction, powers and generally – Inherent and general statutory powers – Stays of proceedings until costs of earlier proceedings paid – Costs of proceedings against sheriff re: enforcement of earlier costs orders.
Phillip Morris Ltd v Attorney-General [2006] VSCA 21, 14 VR 538, referred to.
Aust Dig Procedure [1023]
Procedure – Civil proceedings in State and Territory courts – Security for costs – Factors relevant to exercise of discretion – Other cases and matters – Application for leave to appeal from order dismissing proceedings because frivolous, vexatious and abuse of process.
Aust Dig Procedure [1762]
REPRESENTATION:
Counsel:
Applicant: In person
Second Respondent: J Zeeman
Solicitors:
Second Respondent: Shaun McElwaine + Associates
Judgment Number: [2017] TASSC 19
Number of paragraphs: 19
Serial No 19/2017
File No 3036/2016
DARRYL ROBERT HOWLIN v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL and CLARENCE CITY COUNCIL
REASONS FOR JUDGMENT BLOW CJ
31 March 2017
The second respondent, the Clarence City Council, is seeking orders that the applicant provide security for the costs of an application, and for a stay of proceedings pending both the provision of security for costs and the payment of costs of other proceedings that the applicant has failed to pay.
For many years the applicant, Darryl Howlin, has been attempting to obtain approval to subdivide land which he owns at Opossum Bay. On 1 August 2016 the Resource Management and Planning Appeal Tribunal rejected three appeals instituted by Mr Howlin in relation to subdivision proposals that had been refused by the council in 2005 and 2007: Howlin v Clarence City Council [2016] TASRMPAT 15. Mr Howlin then applied for the review of the tribunal's decision under the Judicial Review Act 2000. The council applied for an order for the dismissal of Mr Howlin's application on the basis that it was frivolous, vexatious, and an abuse of the process of the Court. It succeeded. Holt AsJ dismissed Mr Howlin's application on those bases: Howlin v Resource Management and Planning Appeal Tribunal (No 3) [2016] TASSC 49.
Mr Howlin wishes to appeal from that decision. However s 38(5) of the Judicial Review Act provides that an appeal from such an order may be brought only with the leave of the Court. Mr Howlin has applied for leave to appeal.
In the leave proceedings, the council has made an interlocutory application seeking orders to the following effect:
· That the appeal and the leave application be stayed until Mr Howlin has paid to the council all amounts owing pursuant to costs orders made by Tennent J on 11 June 2014 and 30 July 2014.
· That Mr Howlin be required to give security for the costs of the appeal and the leave application, in an amount and a form to be determined by the Court.
· That the appeal and the leave application be stayed until such security is provided.
I will not make any orders in relation to the proposed appeal because no such appeal has been instituted. However I have decided to make all the orders sought in relation to the leave application, for the reasons which follow.
The application relating to outstanding costs
In March 2014 Mr Howlin owed about $200,000 in respect of various orders for costs, inclusive of fees and interest. The orders in question were made on six occasions from December 2010 to July 2013. Five writs of fi fa had been issued. The sheriff was about to auction Mr Howlin's home. Mr Howlin applied for orders restraining the council and the Registrar of this Court from proceeding with the sale. On 8 April 2014 Tennent J dismissed that application: Howlin v Clarence City Council and Sheriff for the State of Tasmania [2014] TASSC 20. On 30 July 2014, her Honour ordered Mr Howlin to pay the costs of that application on an indemnity basis: Howlin v Clarence City Council and Sheriff for the State of Tasmania (No 2) [2014] TASSC 39.
Mr Howlin filed another application on 29 May 2014 seeking an order requiring the sheriff to sell the property by private sale rather than public auction. On 11 June 2014 Tennent J dismissed that application and ordered Mr Howlin to pay the council's costs.
The costs payable by Mr Howlin pursuant to the orders of 11 June 2014 and 30 July 2014 were taxed in the sums of $2,649 and $7,451.75 respectively. Those amounts remain unpaid. Writs of fi fa have been issued. The deputy sheriff has provided a report to the council's solicitors which suggests that any attempt to levy execution would probably be a waste of time because of the state of Mr Howlin's finances.
There is no doubt that this Court has the power to stay a proceeding while the costs of an earlier proceeding remain unpaid. In Phillip Morris Ltd v Attorney-General [2006] VSCA 21, 14 VR 538, Maxwell P reviewed the relevant authorities and, at [97], summarised the principles that emerge from them as follows:
"(1) Where —
(a) a second proceeding is commenced by a party, in respect of subject-matter which is the same as, or similar to, that of an earlier, unsuccessful, proceeding brought by the same party;
(b) that party was ordered to pay the costs of the first proceeding; and
(c) those costs remain unpaid,
the court has a discretion to stay the second proceeding until the costs have been paid.
(2)The power to grant a stay is exercisable by the Court in order to ensure that there is no abuse of process, constituted by exposure of the defendant to the cost of defending the second proceeding while its costs of the first proceeding remain unpaid.
(3) In the exercise of the discretion, it is relevant to consider the financial position of the unsuccessful plaintiff and the possibility that the grant of a stay may stifle the second proceeding."
In the same case, at [150], Ormiston JA, quoting Mellor J in Cobbett v Warner (1866) LR 2 QB 108 at 110, emphasised that "This summary jurisdiction should be sparingly exercised, as it deprives the party whose action is stopped of the right to try his cause and if necessary to carry it to the highest tribunal." Eames JA endorsed that principle at [155].
The costs orders that led to the sheriff selling Mr Howlin's house all related to litigation as to the status of a strip of land known as Marsh Street. Mr Howlin contended that it was a public highway. The council successfully contended that it was not. It was successful first before Evans J and then before the Full Court: Clarence City Council v Howlin [2012] TASSC 26; Howlin v Clarence City Council [2013] TASFC 7. Mr Howlin submitted to me that his proposed appeal would not be based on a contention that Marsh Street was a public highway, but on a contention that his land has "the qualities of a minimum lot". Under s 84(1)(a) of the Local Government (Building and Miscellaneous Provisions) Act 1993, a council may not approve a plan of subdivision if "any proposed lot has not the qualities of a minimum lot". Evidently Mr Howlin contends that the "minimum lot" requirement of the relevant legislation is satisfied, and that therefore he can and should be granted subdivision approval even if Marsh Street is not a public highway. Such a result would seem surprising since any such subdivision approval would seem likely to result in the creation of public roads within the subdivision that are not linked by public roads to any other public roads outside the subdivision.
I accept that Mr Howlin has recast his arguments so that, if his application under the Judicial review Act were to proceed, it would not be essential for him to persuade a judge that Marsh Street is not a public highway. Despite his attempt to circumvent that issue, his proposed appeal is very closely related to the earlier litigation concerning the status of Marsh Street. It is true that the proceedings that gave rise to the costs orders were directly related only to earlier costs orders, but those proceedings were in the nature of satellite litigation that would not have been commenced but for the proceedings about Marsh Street. In the circumstances, I am satisfied that the application for leave to appeal is sufficiently connected to the litigation that gave rise to the two unsatisfied costs orders for the discretion discussed in the Phillip Morris case to exist.
I am satisfied that Mr Howlin is short of funds. I accept that he receives Centrelink benefits and has no other income. However it is clear that he has an interest in the land that he wants to subdivide. It seems likely that the grant of a stay would stifle the appeal that Mr Howlin wants to institute. However that would not prevent him from making a fresh subdivision application to the council, and the subdividing of his land appears to be his ultimate goal. It is also clear that he has been ordered to pay costs to the council on several earlier occasions, and the council has had great difficulty in enforcing those orders.
Having regard to all those matters, I consider that it would be an abuse of the process of the Court for the council to be exposed to the cost of defending the leave application while its costs of the two earlier proceedings remain unpaid. I will therefore grant the stay of the leave application that has been sought in relation to those orders.
Security for costs of the leave application
This Court has the power to make orders for the provision of security for costs either in the exercise of its inherent jurisdiction or pursuant to r 828 of the Supreme Court Rules 2000. That rule lists a number of situations in which the Court has a discretion to order security, such as where a party is ordinarily resident out of Tasmania, or where the address of a party is not stated in the originating process. None of the situations listed in r 828 exists in this case. The Court has the power to make an order for security for costs only in the exercise of its inherent jurisdiction.
It is well established that impecuniosity on the part of a litigant is not sufficient, of itself, to warrant an order for security for costs: Ross v Jacques (1841) 8 M&W 135 at 136, 151 ER 980 at 981; Cowell v Taylor (1885) 31 Ch D 34; Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609 at 612-613. Because it is important that the impecunious should have access to the courts, security for costs should be ordered against natural persons only in exceptional circumstances: Shannon v Australian and New Zealand Banking Group Ltd (No 2) [1994] 2 Qd R 563.
I have no doubt that Mr Howlin believes his case to have merit. I accept that a stay order would be likely to stultify this litigation. However there are a number of factors that weigh in favour of ordering that security be given. The costs orders made in the years 2010 to 2013 remained unsatisfied until Mr Howlin's home was sold by the sheriff. The two costs orders made in 2014 remain unsatisfied. Mr Howlin has a history of failure in litigation, though not in every case. Very significantly, the question at issue in the proposed appeal, namely whether an appeal from the tribunal's decision would be frivolous, vexatious and an abuse of process, has already been determined adversely to Mr Howlin by a judicial officer. Having regard to those factors, I am satisfied that this is an exceptional case and that the making of an order for security is warranted.
During the hearing of the interlocutory application I invited submissions as to whether $15,000 would be an appropriate estimate of the council's costs of and incidental to the leave application, should it proceed. Neither party was able to provide me with a better estimate, and I will therefore adopt my own figure. In my view the most appropriate order is one requiring Mr Howlin to give security for the council's costs of the leave application by paying $15,000 into Court.
Conclusion
For the reasons stated above, my orders are as follows:
1The application for leave to appeal is stayed until the applicant pays to the second respondent all amounts owing to it pursuant to the costs orders made by the Honourable Justice Tennent on 11 June 2014 and 30 July 2014.
2That the applicant give security for the costs of the second respondent in relation to his application for leave to appeal by paying into Court the sum of $15,000.
3That the application for leave to appeal be stayed until the sum of $15,000 is paid into Court accordingly.
0
6
0