Howson v Town of Mosman Park

[2018] WASC 373

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   HOWSON -v- TOWN OF MOSMAN PARK [2018] WASC 373

CORAM:   PRITCHARD J

HEARD:   ON THE PAPERS

PUBLISHED           :   3 DECEMBER 2018

FILE NO/S:   GDA 11 of 2017

BETWEEN:   COLLEEN CHRISTINE HOWSON

Appellant

AND

TOWN OF MOSMAN PARK

Respondent

Catchwords:

Costs - Exercise of discretion as to costs where no determination on the merits - Where appeal discontinued - Whether supervening event - Whether prosecution of appeal was unreasonable - Whether capitulation

Legislation:

State Administrative Tribunal Act 2004 (WA), s 105(9)
Supreme Court Act 1935 (WA), s 37

Result:

No order as to costs

Category:    B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	Hotchkin Hanly
Respondent	:	McLeods Barristers & Solicitors

Case(s) referred to in decision(s):

Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194

Chapman v Luminis Pty Ltd [2003] FCAFC 162

Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17 (S)

Keet v Ward [2011] WASCA 139

Lafferty v Waterton [2016] WASCA 183

Lawrence v Cooperative Bulk Handling Ltd [2017] WASC 24 (S)

McClure v The Mayor and Councillors of the City of Stirling [No 3] [2009] WASC 247

Minniti v Motor Vehicle Industry Board [2011] WASCA 275 (S)

ONETEL Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder [No 2] [2016] WASC 179

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

Re Western Australian Planning Commission; Ex parte Solomon [2010] WASCA 236 (S)

Rogers v De Mol Investments Pty Ltd [No 2] [2016] WASC 151

PRITCHARD J:

1. In these proceedings, Ms Howson appealed against a decision of the State Administrative Tribunal (Tribunal) to dismiss an application for review of a decision of the Town of Mosman Park.  The Town had refused to grant a building application and a building permit to enable Ms Howson to build a house on her property in Mosman Park.  The question of law which was the subject of the appeal concerned the proper construction of provisions of the Town of Mosman Park Town Planning Scheme No. 2, relating to the maximum building height for a single house for the purpose of the Residential Design Codes.

2. On the day before the listed hearing date for the appeal, the parties filed a minute of consent orders by which Ms Howson was to discontinue the appeal, and for the question of the costs of the appeal to be reserved and determined on the papers.  Each of the parties has filed written submissions and an affidavit in support of the orders that they seek.

3. The Town seeks an order that Ms Howson pay its costs of the appeal.  Ms Howson contends that there should be no order as to costs.

4. For the reasons which follow, there will be no order as to costs.

Principles:  Costs of a discontinued matter

1. An appeal against a decision of the Tribunal is governed by s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Under s 105(9) of the SAT Act, the Court dealing with an appeal from the Tribunal has the power to make any order that it considers appropriate. That is a source of the Court's power to make an order for the costs of an appeal from a decision by the Tribunal.[1] So, too, is s 37 of the Supreme Court Act 1935 (WA).[2]  Those provisions give the Court a wide discretion to determine by whom, and to what extent, the costs of an appeal against a decision of the Tribunal should be paid.[3] There is no doubt that the Court's power under both s 105(9) of the SAT Act, and s 37 of the Supreme Court Act 1935 (WA), is sufficiently broad to permit the Court to make an order for costs even in those cases where an appeal is discontinued.

   [1] Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17 (S).

   [2] Minniti v Motor Vehicle Industry Board [2011] WASCA 275 (S).

   [3] Lawrence v Cooperative Bulk Handling Ltd [2017] WASC 24 (S) [17] (Corboy J).

2. However, the Court's discretion with respect to costs orders is not unfettered; it must be exercised judicially, according to established legal principle.[4] 

   [4] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [65]; Keet v Ward [2011] WASCA 139 [17].

3. The exercise of the Court's discretion to order costs is ordinarily exercised after a hearing on the merits of a matter,[5] in which case the general rule is that costs follow the event.[6]  Where there has been no hearing on the merits, the Court will be 'deprived of the factor that will usually determine how the discretion as to costs is to be exercised'.[7]  In that situation, costs may nevertheless be awarded in 'an appropriate case'.[8] 

   [5] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, 624.

   [6] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [66].

   [7] Lafferty v Waterton [2016] WASCA 183 [17].

   [8] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, 624.

4. Some well-established principles have been developed in relation to when an order for costs may be appropriate, in a case where the matter has not been determined on its merits.  Those principles recognise that the Court cannot try a hypothetical action between the parties to determine where the costs may have fallen, had there been a hearing on the merits.[9]  If one party has acted unreasonably, the Court may conclude that that should sound in an order for costs.  In other ‑ probably rare - cases, the Court may feel confident that although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried.  However, generally speaking, where both parties have acted reasonably in commencing, defending and conducting the proceedings, and their conduct continued to be reasonable until the litigation was brought to an end, the proper exercise of the costs discretion will usually mean that the Court will make no order as to costs.[10]

   [9] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, 624; Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, 201; ONETEL Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 [5].

   [10] Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, 625 (McHugh J); Lafferty v Waterton [2016] WASCA 183 [18] (Newnes, Murphy & Mitchell JJA).

5. It has also been recognised that when some intervening event or unexpected factor has emerged after the litigation has been commenced, so as to substantively remove or heavily qualify the underlying subject matter of the dispute, then in such circumstances a party who has acted reasonably in commencing the litigation may be permitted to bring it to an end without being exposed to the costs of the other litigating parties.[11]   

   [11] Chapman v Luminis Pty Ltd [2003] FCAFC 162 [7]; ONE.TEL Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 [6] (Burchett J); McClure v The Mayor and Councillors of the City of Stirling [No 3] [2009] WASC 247; Re Western Australian Planning Commission; Ex parte Solomon [2010] WASCA 236 (S); Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder [No 2] [2016] WASC 179 [9]; Rogers v De Mol Investments Pty Ltd [No 2] [2016] WASC 151 [17].

Some factual background

1. The appeal was listed for hearing on 14 February 2018.  It was discontinued on 13 February 2018.  The events leading up to that discontinuance were as follows. 

2. Ms Howson first sought, and was refused, approval for a development application to build a house on her Mosman Park property in February 2016.  She initially sought a review by the Tribunal of the Town's refusal of her development application, but withdrew that application.[12]  In February and April 2017 respectively, the Town refused Ms Howson's application for a certified building permit, and for a slightly modified certified building permit.  Ms Howson then sought a review of the latter decision by the Tribunal.  In August 2017, the Tribunal dismissed that application for review.  The present appeal was then filed.

   [12] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [3].

3. In about October or November 2017, Ms Howson and her husband met with representatives of the Town, including Ms Poezyn, to discuss whether an alternative design for the house (alternative development application) would be acceptable to the Town and to their neighbours.  During that meeting, Mr Howson told the Town's representatives that if the alternative development application was approved on acceptable conditions, Ms Howson would consider withdrawing the appeal.[13] 

   [13] Affidavit of Bronte McGregor Howson sworn 28 February 2018 [10]; Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [11].

4. The Town's officers told Mr and Ms Howson that if an alternative development application was received during November 2017, it would be assessed urgently with a view to consideration by the Council at a special Council meeting in January or early February 2018.[14]  During that meeting, Ms Poezyn asked Mr and Ms Howson whether the hearing of the appeal could be postponed 'to give more time to achieve a better outcome'.  However, they were not prepared to change the date of the hearing of the appeal.[15]

   [14] Affidavit of Bronte McGregor Howson sworn 28 February 2018 [5] - [12]; Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [10].

   [15] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [13].

5. Ms Howson lodged the alternative development application in late December 2017.[16]  It was assessed by the Town's planning officer between 2 and 5 January 2018 and was then advertised to affected neighbours, who were entitled to make submissions during a 21‑day period.[17]

   [16] Affidavit of Bronte McGregor Howson sworn 28 February 2018 [13]; Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [14].

   [17] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [15] - [17].

6. A special council meeting was called for 8 February 2018 (Special Council Meeting), which was the earliest date on which the Council could deal with the alternative development application.  Ms Poezyn deposed that

   The Town went to considerable effort to deal with the alternative development application quickly and have it determined at a Special Council Meeting, with a view to having a decision made in time to avoid the need for a hearing of the Appeal.  One of the motivations for doing so was to minimise the cost of the Appeal to both parties.[18]

   [18] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [20].

7. During January and into early February 2018, officers of the Town were in contact with Ms Howson's architect and builder.  The Town's officers informed them that they intended to recommend that the Council approve the alternative development application on conditions, including two 'non-standard' conditions.  The terms of those conditions were sent to the Howsons' architect.[19]

   [19] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [22] - [23] and Annexure B.

8. On 5 February 2018, the agenda for the Special Council Meeting on 8 February 2018 was published on the Town's website.  The agenda included a copy of the planning officer's report on the alternative development application, which recommended approval of the alternative development application, subject to conditions, including the two non-standard conditions to which I have already referred (recommended conditions).[20]

   [20] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [22] - [24].

9. On 7 February 2018, my associate contacted the Town's solicitors to inquire when their written submissions in the appeal would be filed.  (By orders of the Court made on 29 September 2017, Ms Howson had been ordered to file her written submissions 28 days prior to the hearing - that is, by 17 January 2018.  Those submissions were not filed and served until 1 February 2018.  No extension of time was sought or granted.) 

10. At 9.45 am on Thursday 8 February 2018, Ms Howson's solicitors informed the Town's solicitors that Ms Howson wished to see the Town's submissions in the appeal, and to await the outcome of the Special Council Meeting that evening, in order to review any conditions which might be imposed as a condition of approval, and then to have the opportunity to obtain legal and planning advice, before making a decision over the weekend as to the conduct of the appeal.[21]  Mr Howson deposed that:

    As there was only a short period of time between the meeting of the Council of the Town … on 8 February 2018 and the hearing of the appeal, [Ms Howson] and I wanted enough time to consider our position and, in particular, the conditions that might be imposed by the Town, before deciding whether to proceed with the appeal.[22]

    [21] Affidavit of Bronte McGregor Howson sworn 28 February 2018 [17], Annexure BMH1.

    [22] Affidavit of Bronte McGregor Howson sworn 28 February 2018 [16].

11. Later in the morning of 8 February 2018, the Town's solicitors sent an email to my associate explaining that the Town's submissions had not yet been filed because Ms Howson's submissions had been filed over two weeks late, and because there was a prospect that the alternative development application might be approved and in that event, that the appeal might be resolved by the agreement of the parties.  The Town's solicitor therefore proposed that the Town's submissions would be filed on 12 February 2018.[23]

    [23] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018, Annexure F.

12. Counsel for Ms Howson objected to that proposed timetable on the basis that it would not give him sufficient time to prepare for the hearing of the appeal.  In those circumstances, my associate advised the parties' solicitors that I required that the Town file its submissions on 9 February 2018.  My associate also requested that 'if there exists the prospect of settlement, which may affect the hearing date, could the parties please advise as soon as possible'.[24]

    [24] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018, Annexure F.

13. The Special Council Meeting was held on 8 February 2018 at 6.00 pm.  Ms Howson's architect and builder attended that meeting and her architect informed the Council that Ms Howson was prepared to accept all of the recommended conditions.[25]  At the meeting, the Council decided to grant approval to the alternative development application, subject to the recommended conditions.[26]

    [25] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [27].

    [26] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [28], Annexure D.

14. Within minutes of the conclusion of the Special Council Meeting, Ms Poezyn spoke with Ms Howson's architect and builder.  Ms Poezyn deposed that she requested confirmation by 10.00 am on 9 February 2018 'that the Appeal would be withdrawn, as to as to avoid wasting further costs'.[27]  Shortly thereafter she also advised the Town's solicitors that the alternative development application had been approved by the Council.[28]  Very shortly thereafter, on the same evening, the Town's solicitor advised Ms Howson's solicitor that the alternative development application had been approved by the Council subject to the recommended conditions.[29]

    [27] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [29].

    [28] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [30].

    [29] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [31].

15. Ms Poezyn deposed that the Town's solicitors and counsel had been instructed to minimise the amount of work done in preparing for the appeal prior to the Special Council Meeting, given the likelihood that the appeal would be discontinued if the alternative development application was approved.[30]

    [30] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [25].

16. At 11.36am on 9 February 2018, Ms Howson's solicitor emailed the Court to confirm that his instructions were to proceed with the appeal the following Wednesday, 14 February 2018.[31] 

    [31] Affidavit of Gabriela Renate Poezyn sworn 28 February 2018 [33].

17. Mr Howson deposed that although he received a copy of the Council's decision and the recommended conditions during the morning of 9 February 2018, he did not have the opportunity to read those documents until later in the day, as he was attending a function.[32]

    [32] Affidavit of Bronte McGregor Howson sworn 28 February 2018 [19].

18. Shortly before 4.00 pm on 9 February 2018, the Town's submissions in the appeal were filed and served.[33] 

    [33] Affidavit of Bronte McGregor Howson sworn 28 February 2018 [20].

19. In the early afternoon on Sunday 11 February 2018, Ms Howson's solicitor sent an email to the Town's solicitors to advise that Ms Howson would withdraw the appeal if the Town bore its own costs.[34]  However, the parties were unable to reach agreement as to where the costs of the appeal should fall.  In the end, on 13 February 2018, the parties agreed to orders by consent to discontinue the appeal, and for the question of costs to be determined by the Court on the papers. 

    [34] Affidavit of Bronte McGregor Howson sworn 28 February 2018 [21] - [22].

The parties' submissions

The Town's submissions

1. The Town submits that it is entitled to its costs on two bases.  First, it says that the Ms Howson's conduct - to insist that the Town lodge its submissions before Ms Howson discontinued the appeal, and to delay giving instructions to discontinue until 11 February 2018 - was unreasonable in the circumstances. 

2. The Town submits that Ms Howson's conduct was unreasonable in circumstances where:[35]

   (a)Ms Howson had foreshadowed that if the alternative development application was approved with acceptable conditions, the appeal would be withdrawn;

   (b)Ms Howson's representatives knew of the recommended conditions before the Special Council Meeting;

   (c)Ms Howson was represented at the Special Council Meeting by her architect who confirmed that the recommended conditions were acceptable;

   (d)Ms Howson's representative knew at the Special Council Meeting that the development had been approved with acceptable recommended conditions;

   (e)the fact of the approval was immediately relayed to Ms Howson's solicitors by email;

   (f)Ms Howson knew that if the appeal was not discontinued promptly on 9 February 2018 the Town would be forced to incur costs in preparing for the hearing; and

   (g)on Friday 9 February 2018 Ms Howson expressly elected to continue with the appeal.

   [35] Town's submissions [10].

3. The Town submits that, acting reasonably, Ms Howson should have promptly informed the Town on 9 February 2018 that she did not intend to pursue the appeal.  Instead, she elected to continue with the appeal at the point, which meant that the Town was required to complete the preparation of its written submissions for the hearing of the appeal.[36]

   [36] Town's submissions [11].

4. The Town submits that it was unreasonable for Ms Howson to want to obtain both the approval of the alternative development application, and to consider the Town's submissions in the appeal, and that that 'smacks of wanting "to have it both ways".'[37] 

   [37] Town's submissions in reply [8].

5. The Town also submits that '[a]n alternative inference open on the facts is that [Ms Howson] always intended to discontinue with the benefit of the [approval of the] alternative development [application], but nevertheless required the [Town's] submissions simply to cause inconvenience and expense to the [Town].'[38]

   [38] Town's submissions in reply [8].

6. Secondly, the Town says the fact that Ms Howson decided to discontinue the appeal only after she had had the opportunity to read the Town's submissions, is consistent with her realising that her appeal was weak or hopeless.[39]  In that sense, the Town submits that the discontinuance of the appeal represents a capitulation by Ms Howson.

Ms Howson's submissions

[39] Town's submissions [12].

1. Ms Howson submits that the appropriate disposition of the matter is that there be no order as to costs, and says that she conducted herself reasonably in all respects.[40]  She points to the fact that she negotiated a compromise of her preferred design, and that representatives of the Town were informed that the appeal would be withdrawn if approval was granted on acceptable conditions.  Ms Howson also submits that it was proper and reasonable for her to await the grant of approval and the conditions imposed on it by the Council, as there was no guarantee that the Council would inevitably accept the recommendation of its planning officers. 

   [40] Ms Howson's submissions [17] and [22].

2. In addition, Ms Howson contends that the question of whether any conditions were acceptable depended to some extent on whether the merits of the appeal would justify continuing with it.  Accordingly, she submits that it was reasonable for her to have the opportunity to consider both the Town's submissions on the appeal, and the approval and conditions in respect of the alternative development application, over the weekend. 

3. Ms Howson also points out that the position communicated by her solicitors at 11.36am on Friday 9 February 2018 was not inconsistent with the email they had sent the previous day, as at that time, Ms Howson still had not received either the submissions of the Town, or a copy of the approval with its conditions.  Ms Howson submits that as soon as she had a reasonable opportunity to consider the material which was provided late on Friday afternoon, she instructed her solicitors to inform the Town's solicitors that the appeal would be discontinued, and they conveyed that to the Town's solicitors within a matter of hours on the Sunday morning. [41]

   [41] Ms Howson's submissions [17] and [22].

4. In addition, Ms Howson submits that had the Town commenced drafting its submissions when it received her submissions, its costs would have been incurred in any event.[42]

   [42] Ms Howson's submissions [18].

5. As for the Town's contention that she had 'capitulated', Ms Howson submits that she did not do so, but rather that she had compromised by amending the preferred design for her family home, and that she advised that she would discontinue the appeal over the weekend, following her receipt of the Council's approval and the Town's submissions on Friday 9 February 2018.[43]  Ms Howson submits that it was 'eminently reasonable when considering whether the [alternative development] application would ultimately be an acceptable resolution to [her], to have one business day (and two days on a weekend) to consider the outcome of the Council's meeting, the conditions imposed and the arguments advanced by the [Town] in the appeal'.[44]

   [43] Ms Howson's submissions [20].

   [44] Ms Howson's reply submissions [6].

6. Consequently, Ms Howson submits that this is a case where the approval of the alternative development application 'substantively removed' or 'heavily qualified' the underlying subject matter of the appeal, and that in those circumstances, no order for costs should be made following her discontinuance of the appeal.

Why there should be no order as to costs

1. I am unable to accept the Town's submission that the circumstances of this case warrant a departure from the ordinary rule in a case of this kind, namely that no order as to costs should be made.  In my view, the circumstances do not support the characterisation of Ms Howson's conduct as a 'capitulation', which recognised that her appeal was unlikely to succeed.  Nor can Ms Howson's conduct as a litigant be characterised as so unreasonable as to warrant a costs order against her.  Instead, this was clearly a case where an intervening circumstance, external to the appeal itself - namely the approval of the alternative development application - cast a different complexion on the appeal, at least as far as Ms Howson was concerned, and significantly qualified the practical significance of the dispute underlying the appeal. 

2. Until the grant of approval for the alternative development application, the development for which Ms Howson had sought approval had been refused on a ground which she contended involved an error by the Town in the construction of the applicable town planning scheme.  But for that error, her case was that the development would, and should, have been approved by the Town.  The approval of the alternative development application represented an approval of an alternative design, which clearly represented a compromise on her part as to her preferred design for her home.  This is not a case which can properly be described, in the pejorative sense for which the Town contends, as Ms Howson 'wanting to have it both ways'.  On the one hand, the approval of the alternative development application involved certainty of outcome, but necessarily also represented a compromise in the result for Ms Howson.  On the other hand, proceeding with the appeal involved the uncertainty inherent in any litigation, but if the appeal was successful, the outcome would be the likely approval of Ms Howson's preferred design for her home.  Faced with the intervening circumstance posed by the grant of approval for the alternative development application, it was not unreasonable for Ms Howson to seek the opportunity of a brief period to consider its implications, before making a decision as to whether to discontinue the appeal. 

3. The time that Ms Howson took in that consideration was brief.  Her solicitors were notified of the approval of the alternative development application on the evening of Thursday 8 February 2018 and by the afternoon of Sunday 11 February 2018, they had notified the Town's solicitors that the appeal would be discontinued. 

4. Although the appeal in this case was discontinued very shortly before the hearing of the appeal, that is not determinative of where the costs should fall.  Questions of reasonableness must be assessed in light of all of the circumstances.  (By way of example, in Lafferty v Waterton,[45] the Court of Appeal made no order as to costs, despite the fact that that matter was settled by the parties after the hearing of the appeal, but before the Court had delivered judgment.)  The fact that the discontinuation was effected shortly before the hearing of the appeal was entirely a product of the fact that the approval for the alternative development application was not given until less than a week before the hearing of the appeal.

   [45] Lafferty v Waterton [2016] WASCA 183.

5. In any event, the very brief period which Ms Howson took to consider whether to proceed with the appeal was not unreasonable in the circumstances.  I do not overlook the fact that because the alternative development application had received the support of the Town's planning officers, there was no doubt some cause for optimism on Ms Howson's part that that alternative development application would be approved.  However, there could be no guarantee that that would be the case.

6. In the end, despite the Town's efforts to ensure that the alternative development application was considered by the Council as expeditiously as possible, the Council's approval was not given until the evening before the Town's submissions on the appeal were due to be filed and served, in accordance with the revised timetable imposed by the Court for doing so. 

7. The Town's submissions failed to grapple with the fact that the revised timetable for the filing of the Town's submissions had been set by the Court.  (I digress to observe that, regrettably, the parties appeared to approach the Court's timetable for the filing of submissions on the basis that it was entirely up to them whether or not they filed their submissions by the day on which the Court had ordered that that be done.  Neither of them requested an extension of time to file the submissions in advance of the due date for those submissions, and counsel for the Town did not offer the Court the courtesy of an apology for the late filing of their submissions.)  Leaving that to one side, the point remains that the Town was required to file its submissions by 9 February 2018 because the Court had declined to give an extension of time beyond that point, as the Town had requested.  In those circumstances, and contrary to the Town's submissions, there is no basis for any inference that Ms Howson 'required' the Town's submissions so as to cause inconvenience and expense to the Town. 

8. Instead, the revised timetable for the filing of the Town's submissions in the appeal meant that Ms Howson was able to see those submissions on 9 February 2018, at the same time as she considered whether to proceed on the basis of the alternative development application and discontinue the appeal.  That she was able to do so does not mean that her conduct was unreasonable.  Nor does it mean that her decision to discontinue the appeal can be construed as an acceptance that the prospects of her appeal were poor.  It is difficult to see how Ms Howson could have formed any different view about the prospects of her appeal, merely by reviewing the submissions prepared by the Town's counsel, in circumstances where she had been represented by a senior counsel before the Tribunal and when she filed her appeal, and no doubt had the benefit of counsel's advice as to her prospects of success.  That is all the more the case given that the appeal concerned a question of the proper construction of the applicable town planning scheme, and questions of statutory construction are often matters over which reasonable minds may differ.

9. When it became clear that Ms Howson intended to pursue approval for the alternative development application, it was open to both parties to have approached the Court for an adjournment of the hearing of the appeal, and an extension of time for the filing of the submissions, until some time after the outcome of that application was known.  Neither of them did so.  While Ms Poezyn raised the possibility of an adjournment with Mr and Ms Howson, who indicated that they wished the appeal to proceed, it was nevertheless open to the Town to apply to the Court for an adjournment in any event.  Had an adjournment, and a more significant extension of the timetable for submissions been sought, and granted, that may well have meant that the bulk of both parties' costs of preparing for the appeal could have been deferred until some time after the outcome of the alternative development application was known. 

10. Having regard to all of the circumstances, the appropriate exercise of the costs discretion in this case is that there be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

LF
ASSOCIATE TO THE HONOURABLE JUSTICE PRITCHARD

3 DECEMBER 2018