Lionize Group Pty Ltd v Minister for Transport and Infrastructure (No 2)

[2020] SASCFC 44

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

LIONIZE GROUP PTY LTD & ANOR v MINISTER FOR TRANSPORT AND INFRASTRUCTURE & ANOR (No 2)

[2020] SASCFC 44

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)

27 May 2020

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - COSTS

Application for costs by the defendants.

On 21 April 2020, this Court dismissed the plaintiffs’ application for judicial review of the decision of the Minister for Transport, Infrastructure and Local Government to consent to the removal of rail track running through Kroemer’s Crossing just outside of Tanunda. The reasons of the Court were delivered on 24 April 2020.

Held per curiam:

1.     The plaintiffs are to pay the defendants’ costs of the action to be taxed if not agreed.

Non-Metropolitan Railways (Transfer) Act 1997 (SA) s 5, referred to.
Lionize Group Pty Ltd v Minister for Transport and Infrastructure [2020] SASCFC 29, considered.

LIONIZE GROUP PTY LTD & ANOR v MINISTER FOR TRANSPORT AND INFRASTRUCTURE & ANOR (No 2)
[2020] SASCFC 44

Full Court:      Kourakis CJ, Peek and Nicholson JJ

1. THE COURT: On 21 April 2020, this Court dismissed the plaintiffs’ application for judicial review of the decision of the Minister for Transport, Infrastructure and Local Government (the Minister) to consent to the removal of rail track running through Kroemer’s Crossing just outside of Tanunda, pursuant to s 5(5) of the Non-Metropolitan Railways (Transfer) Act 1997 (SA). The reasons of the Court were delivered on 24 April 2020.[1]

   [1]    Lionize Group Pty Ltd v Minister for Transport and Infrastructure [2020] SASCFC 29.

2. The defendants have applied for the costs of the action.  The plaintiffs oppose the application.

3. The plaintiffs submit that they brought the action urgently in response to the announcement that the rail track would be removed.  At the time they issued proceedings, they believed the Chief Executive of the Department of Planning, Transport and Infrastructure, as the Minister’s delegate, had given the statutory consent to the removal.  In particular, the plaintiffs emphasise that they were not informed that the Minister had personally exercised his power to consent to the removal of the rail track until after they had issued proceedings.  The plaintiffs also submit that the Minister entered into a Deed of Surrender with One Rail Australia, the owner of the rail track, and the lessee of that part of the crossing over which it ran, only after the action was instituted. 

4. However, the plaintiffs agreed to, and indeed sought, an expanded hearing of all issues, and maintained their challenge to the giving of consent for the removal of the rail track, after they had been informed of the steps taken to secure the Minister’s power to have the track removed.  The plaintiffs were ultimately wholly unsuccessful. 

5. There is no reason to depart from the ordinary rule that costs follow the event.  The Court orders that the plaintiffs pay the defendants’ costs of the action to be taxed if not agreed.