JULIE Hoskin v Greater Bendigo City Council and Ors(according to the attached Schedule)
[2015] VSCA 370
•23 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0088
| JULIE HOSKIN & ANOR | Applicants |
| v | |
| GREATER BENDIGO CITY COUNCIL & ORS (according to the attached Schedule) | Respondents |
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| JUDGES: | WARREN CJ, OSBORN AND SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 23 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 370 |
| JUDGMENT MAY BE CITED AS: | Hoskin v Greater Bendigo City Council [No 2] [2015] VSCA 370 |
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COSTS – Application for leave to appeal wholly unsuccessful – Proposed appeal grounds not initially discernible – Overarching obligations of parties under the Civil Procedure Act 2010 – Whether planning objection in public interest – No basis for departing from usual rule – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | --- | Robert Balzola & Associates |
| For the First, Fourth and Fifth Respondents | No appearance | |
| For the Second Respondent | Ms M Foley | Maddocks Lawyers |
| For the Third Respondent | --- | Best Hooper Lawyers |
WARREN CJ:
OSBORN JA:
SANTAMARIA JA:
On 16 December 2015, the Court refused the applicants’ application for leave to appeal[1] against two decisions of the Victorian Civil and Administrative Tribunal.[2] Upon the delivery of the Court’s reasons for judgment, the applicants were not represented by counsel and their solicitor was unable to attend court. In the circumstances, and with the consent of the second and third respondents, the Court set a timetable for the filing of written submissions as to costs.
[1]Hoskin v Greater Bendigo City Council [2015] VSCA 350.
[2]Hoskin v Greater Bendigo City Council [2015] VCAT 1124; Hoskin v Greater Bendigo City Council [2015] VCAT 1125.
Before turning to the submissions that have been made, it is convenient to outline the procedural history of this matter before the Court. The decisions of the Tribunal were made on 6 August 2015. On 3 September 2015, the applicants sought to file an application for leave to appeal. The Court granted the applicants additional time to lodge documents which conformed with the Rules. On 11 September 2015, the applicants filed an application for a stay of the Tribunal’s order, and on 13 September 2015 they filed their application for leave to appeal. Amended versions of those documents were subsequently filed.
The stay application was heard on 23 September 2015. At that time, the applicants were proposing 18 grounds of appeal.[3] The Court observed at the hearing that the proposed appeal grounds lacked particulars and appeared to derive from s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Counsel for the applicants acknowledged that the proposed grounds were inadequate and identified two specific causes for complaint which the applicants intended to pursue: the refusal of the Tribunal’s President to recuse himself on 27 July 2015, and what was described as the Tribunal’s finding that a social impact statement was not admissible or required to be taken into consideration under s 60(1)(f) of the Planning and Environment Act 1987 (‘PE Act’).[4] The Court dismissed the stay application and ordered that the applicants file a further amended application for leave to appeal in which the proposed grounds of appeal were expressed in proper form. The further amended application filed on 1 October 2015 maintained the proposed ground concerning s 60(1)(f) and developed it into two separate grounds. It did not pursue the ground concerning the non-recusal of the President.
[3]Hoskin v Victorian Civil and Administrative Tribunal [2015] VSCA 270 [9].
[4]Ibid [18]–[19], [23]–[24].
Subsequently, the application for leave to appeal was taken to be abandoned pursuant to r 64.45(2)(a) of the Supreme Court (General Civil Procedure) Rules 2005 due to the applicants’ failure to file a leave application book by the relevant deadline. The applicants applied to reinstate the application pursuant to r 64.45(4)(a). The second and third respondents did not oppose this course and the application was reinstated as against them at the hearing of the application for leave to appeal on 6 November 2015. However, the applicants did not pursue reinstatement of the application as against the first, fourth and fifth respondents.
Finally, on 28 October 2015 the applicants applied for a protective costs order capping their costs liability for the appeal at $25,000. At the hearing on 6 November 2015, the Court was informed that negotiations were underway between the parties as to matters of costs and that the application for leave to appeal would proceed in any event. On 10 November 2015, by the consent of the parties, the Court dismissed the application for a protective costs order and made no order as to costs in respect of that application.
On 16 December 2015, the Court refused the application for leave to appeal, finding that neither of the applicants’ proposed appeal grounds, as ultimately developed in oral argument, had any prospect of success.[5]
[5]Hoskin v Greater Bendigo City Council [2015] VSCA 350 [19].
The applicants now contend that each party should pay its own costs. Their principal submission is that their application for leave to appeal was in the public interest. They point to media coverage of the proceedings and contend that their application had significant impacts for the Bendigo population, for the State of Victoria more broadly, and for the interplay between Victorian planning legislation and international human rights law.
The second and third respondents seek their costs, including reserved costs.
Rule 64.38(1) of the Supreme Court (General Civil Procedure Rules) 2015 provides that the Court may make any order for the whole or any part of the costs of an application or appeal as it thinks fit. The Court’s discretion to award costs is wide, although in general a successful litigant will be awarded costs in the absence of special circumstances.[6] The Court’s discretion is exercised judicially[7] and with the aim of doing ‘substantial justice’ between the parties on matters of costs.[8] The Court is also required to have regard to the objects set out in s 9(1) of the Civil Procedure Act 2010 and may have regard to the matters set out in s 9(2) of that Act.
[6]Oshlack v Richmond River Council (1998) 193 CLR 72, 97 [67] (McHugh J), 121 [134] (Kirby J).
[7]Ibid 96 [65] (McHugh J).
[8]Chen v Chan, [2009] VSCA 233 [10] (J Forrest AJA, Maxwell P and Redlich JA agreeing).
In our view, there is no basis in this case for a departure from the usual rule. The application for leave to appeal was wholly unsuccessful. It was based upon proposed grounds of appeal which raised matters not argued before the Tribunal,[9] and which were not at all discernable from the application for leave to appeal prior to 1 October 2015.[10] The proposed grounds ultimately evolved further at the hearing,[11] and were based upon various misconceptions.[12] The manner in which the proceeding was conducted by the applicants caused the respondents to incur unnecessary expense in preparing to respond to arguments that the applicants did not pursue. All parties to civil proceedings in this State, and their legal representatives, have overarching obligations under the Civil Procedure Act 2010.[13] These include obligations to cooperate in the conduct of a civil proceeding,[14] to narrow the issues in dispute,[15] and to not make claims without a proper basis.[16] In Yara Australia Pty Ltd v Oswal,[17] the Court stated:
The [Civil Procedure] Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account.[18]
[9]Hoskin v Greater Bendigo City Council [2015] VSCA 350 [98].
[10]See para [3].
[11]Hoskin v Greater Bendigo City Council [2015] VSCA 350 [95].
[12]See, eg, ibid [94], [117], [124], [144].
[13]Sections 10(1)(a), 11.
[14]Section 20.
[15]Section 23.
[16]Section 18.
[17](2013) 41 VR 302.
[18]Ibid 311 [26] (Redlich and Priest JJA and Macaulay AJA).
We would reject the applicants’ submission that their application was in the public interest. It is true that the result of the application had implications for both proponents and opponents of the development proposal, and that it raised media interest. However, that does not mean that the application was brought in the public interest. Many planning objections generate publicity. The applicants brought their application as private objectors, at their own risk, and the Court did not consider the issues raised by the applicants surrounding the interpretation of the PE Act to have prospects of success warranting the grant of leave to appeal. In so far as questions of human rights became relevant, they were raised by the respondents in opposing the application. There is no basis for the applicants’ submission that their application raised important questions regarding Australia’s international obligations or the relationship between public policy and State planning legislation. Nor is there any basis for inferring that the application was brought in the public interest from the fact that presidential members of the Tribunal sat at various times in the proceedings below.
In any event, that litigation may be characterised as involving an element of public interest is not of itself sufficient to warrant departure from the usual rule as to costs.[19] As the applicants’ submissions acknowledge, even in a public interest matter, special circumstances are required to warrant a departure from the usual rule.[20] No relevant special circumstances have been established.[21]
[19]Oshlack v Richmond River City Council (1998) 193 CLR 72, 91–2 [51] (McHugh J, Brennan CJ agreeing).
[20]Ibid 91 [49] (Gaudron and Gummow JJ), 98 [70] (McHugh J), 123 [134] (Kirby J).
[21]See ibid 97–8 [69] (McHugh J, Brennan CJ agreeing).
We would order that the applicant pay the second and third respondents’ costs, on the standard basis, of both the stay application and the application for leave to appeal. There was reference in the submissions of the second respondent to an agreement between the applicants and the second and third respondents as to the fixing of costs. We would leave the enforcement of such an agreement as a matter for the parties.
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SCHEDULE OF PARTIES
| S APCI 2015 0088 | |
| BETWEEN: | |
| JULIE HOSKIN | Applicant |
| KATHLEEN HOWARD | Applicant |
| - and - | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | First Respondent |
| GREATER BENDIGO CITY COUNCIL | Second Respondent |
| AUSTRALIAN ISLAMIC MISSION INC | Third Respondent |
| GREG GARDE AO RFD | Fourth Respondent |
| MARK DWYER | Fifth Respondent |
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