Johnston v The Greens NSW (No 2) - [2020] NSWSC 10

Supreme Court

New South Wales

Medium Neutral Citation: Johnston v The Greens NSW (No 2) [2020] NSWSC 10
Hearing dates: On the papers
Date of orders: 16 January 2020
Decision date: 16 January 2020
Jurisdiction: Equity
Before: Robb J
Decision:
The Court:
(1) Orders that the first and second plaintiffs pay the first, fourth and fifth defendants’ costs of the proceedings on the ordinary basis, to be assessed from 20 February 2019.
Catchwords:
COSTS – departure from the usual rule – public interest litigation – where plaintiffs were wholly unsuccessful in their claim against the first defendant which is a political party registered under the Electoral Act 2017 (NSW) – where plaintiffs seek orders that the first defendant pay their costs and the costs of the active defendants – where plaintiffs and other defendants members of the first defendant – where plaintiffs claim to have no vested financial or political interest in the proceedings – where proceedings involved no question of public importance – where outcome would only affect a small number of people – no reason to depart from the usual rule
COSTS – pre-commencement costs of proceedings – whether Court has power to award pre-commencement costs of proceedings – where a substantial amount of legal work was undertaken well before the originating process was filed – where the dispute ripened into litigation in an extraordinarily fast fashion – good reason to make a specific order that costs be awarded from a date before the filing of the summons – Chow v Chow (No 2) (2015) 229 BPR 35,385; [2015] NSWSC 1348 applied
Legislation Cited: Associations Incorporation Act 2009 (NSW)
Civil Procedure Act 2005 (NSW), s 98
Conveyancing Act 1919 (NSW), s 66G
Electoral Act 2017 (NSW)
Environmental Planning and Assessment Act 1979 (NSW), s 123
Land and Environment Court Act 1979 (NSW), s 69
Supreme Court Act 1970 (NSW), ss 23, 63
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Botany Bay City Council v Minister for Local Government (No 2) [2016] NSWCA 127
Chow v Chow (No 2) (2015) 229 BPR 35,385; [2015] NSWSC 1348
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Darlinghurst Residents' Association v Elarose Investments Pty Ltd [No 3] (1992) 75 LGRA 214
Edwards v Santos Ltd (2011) 242 CLR 421; [2011] HCA 8
Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157
Horswill v McClellan (No 2) [2019] NSWSC 964
Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) (2016) 93 NSWLR 704; [2016] NSWCA 375
Hurstville Municipal Council v Connor (1991) 24 NSWLR 724
Johnston v The Greens NSW [2019] NSWSC 215
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Minister for Planning v Walker (No 2) [2008] NSWCA 334
Oshlack v Richmond River Council (1990) 193…

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.

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Details

Case: [2020] NSWSC 10
Decision Date: 16 January 2020

CaseChat Overview and Summary

In the case of Johnston v The Greens NSW (No 2), the plaintiffs, who were members of The Greens NSW, a political party, sought orders for the party to pay their costs and the costs of other active defendants. The plaintiffs were entirely unsuccessful in their claim against the party, which raised questions about the application of the usual rule regarding costs in public interest litigation. The plaintiffs argued that they had no vested financial or political interest in the proceedings, and that the proceedings involved no question of public importance, with the outcome affecting only a small number of people. The defendants, including The Greens NSW, contended that the plaintiffs should not be granted costs due to their lack of success.

The legal issues before the court included whether the usual rule regarding costs in public interest litigation should be departed from in this case, given the plaintiffs' lack of success, and whether the court had the power to award pre-commencement costs of proceedings where substantial legal work was undertaken before the originating process was filed. The court considered the principles established in Chow v Chow (No 2) (2015) 229 BPR 35,385; [2015] NSWSC 1348, which provide that the court may award costs from a date before the filing of the summons where there is good reason to do so.

The court held that there was no reason to depart from the usual rule regarding costs in this case. The plaintiffs were unsuccessful in their claim, and the proceedings did not involve a question of public importance. The court further determined that it had the power to award pre-commencement costs of proceedings in appropriate circumstances, but found that in this case, there was no good reason to make a specific order for such costs. Consequently, the plaintiffs' application for costs was dismissed.

The court made orders that the plaintiffs pay the costs of the defendants, and that the defendants were to pay their own costs of the proceedings. This outcome reflects the court's view that the usual rule regarding costs should apply in this case, and that there was no justification for departing from that rule or awarding pre-commencement costs.

Orders