Mayberry v Mornington Peninsula Shire Council (No 2)

[2019] VSC 715

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2018 00241

PETER JAMES MAYBERRY, JANICE ELAINE MAYBERRY, WESLEY ALEXANDER GAULT AND JANE GAULT	Plaintiffs
v
MORNINGTON PENINSULA SHIRE COUNCIL	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions on costs received 16 October 2019
DATE OF JUDGMENT:	31 October 2019
CASE MAY BE CITED AS:	Mayberry v Mornington Peninsula Shire Council (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 715

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COSTS – Where plaintiffs succeeded on one of two issues and defendant succeeded on the other – Apportionment of costs where event of success contestable – Appropriate order is that the parties bear their own costs of the proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A Walker	Wisewould Mahony
For the Defendant	Mr N Wood	Russell Kennedy

HER HONOUR:

1. On 16 September 2019, I published my reasons for judgment in this proceeding.[1]  The proceeding concerns a dispute about the status of a carriageway easement over the plaintiffs’ land, and a decision by Mornington Peninsula Shire Council to declare the easement to be a public highway for the purposes of the Local Government Act 1989 (Vic). I decided to make a declaration sought by the plaintiffs, to the effect that the disputed land within the easement was not a public highway at common law. I also concluded that the Council’s decision was within power and was not affected by jurisdictional error, and hence was valid.

   [1]Mayberry v Mornington Peninsula Shire Council [2019] VSC 623, [5] (Reasons).

1. After I delivered judgment, I invited submissions from the parties as to the form of the declaration, and as to the costs of the proceeding.

1. The parties are agreed on the wording of a declaration that gives effect to my reasons for judgment, as follows:

That part of the land marked with cross hatching on the Plan of Survey prepared by Coastal Surveys dated 16 April 2018 as attached to this Order and marked “A”, was not, as at 16 September 2019, a public highway for the purposes of the common law.

1. The parties also filed written submissions on the question of costs.

1. The plaintiffs submitted that the parties should bear their own costs, given that each party succeeded on one of the two substantive issues in the case.  They argued that this would avoid the costs associated with taxing costs, and the difficulties involved in ascribing costs to a particular issue in the proceeding.  They pointed out that most of the evidence and argument at the hearing was directed to the issue on which they succeeded.  Anticipating the Council’s position, they argued that whether the entire easement was a public highway was always an issue in the proceeding, although they did not seek a declaration to that effect until 4 February 2019.

1. The Council acknowledged that, because the plaintiffs succeeded on one issue, it could not expect the Court to order the plaintiffs to pay all of the Council’s costs of the proceeding.  However, it argued that it would not be appropriate for the Court to make no order as to costs, because the plaintiffs did not succeed on both issues and were ‘ultimately unsuccessful in the event’.  The Council proposed two apportionments that it submitted were appropriate:

(a)        an order that the plaintiffs pay 50% of the Council’s costs; or

(b)        alternatively, an order that the plaintiffs pay the Council’s costs up to and including 4 February 2019, being the date on which the plaintiffs amended their originating motion to include a claim for a declaration to the effect that the disputed land had not already become a public highway at common law.

1. For the reasons that follow, I have decided that the most appropriate disposition is that the parties bear their own costs of the proceeding.

1. The usual rule is that costs follow the event.  However, if the event of success is contestable, the parties to the proceeding may be awarded an amount less than their total costs, or costs may otherwise be apportioned on the basis of success on the issues.[2]

   [2]Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2) [2018] FCAFC 7, [3], citing Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192, [6] and Les Laboratoires Servier v Apotex Pty Ltd (2016) 247 FCR 61, [297]–[298], [303], [305].

1. There is no fixed rule regarding how costs may be apportioned between parties; rather, the Court may, in its discretion, apportion costs to achieve an outcome that is just and equitable in the circumstances of the case.[3]  As the High Court observed in Firebird Global Master Fund II v Republic of Nauru (No 2),[4] ‘there are good reasons not to encourage applications regarding costs on an issue-by-issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like’.[5] The judgment as to apportionment is an evaluative rather than an arithmetical one,[6] and requires an assessment of what is fair and reasonable in the circumstances of the particular case.[7] 

   [3]Australian Prudential Regulation Authority v Holloway (2000) 35 ACSR 276, [45] and [52] (Mansfield J).

   [4](2015) 327 ALR 192.

   [5]Firebird Global Master Fund, [6] (French CJ, Kiefel, Nettle and Gordon JJ).

   [6]Australian Trade Commission v Disktravel [2000] FCA 62, [5] (French, Kiefel and Mansfield JJ); Holloway, [52].

   [7]In the matter of Colorado Products Pty Ltd [2014] NSWSC 1509, [5] (Black J).

1. In this case, here were two real issues in dispute – whether the easement was already a public highway, and whether the Council’s decision was valid. 

1. It is the case that the plaintiffs did not, until February 2019, seek a declaration that the disputed land was not a public highway at common law.  However, they asserted their ownership of the land from the outset, against the Council’s position that the entire easement was already a public highway and had vested in the Council.  The plaintiffs’ evidence filed during 2018, and their written submissions dated 11 January 2019, addressed in detail the status of the disputed land.  The Council’s written submissions of 24 January 2019 pointed out that the plaintiffs had not sought a declaration that the disputed land was not a public highway at common law.  The plaintiffs promptly sought to amend their originating motion to claim that relief.  The Council consented to the amendment, and then filed further evidence and submissions in support of its position that the whole easement was already a public highway. 

1. The plaintiffs were correct in their submission that most of the hearing, evidence and argument was directed to the issue of whether the entire easement was a public highway at common law.  It was the only issue on which there was a significant factual dispute, and the additional written submissions filed after the trial were all directed to the issue.  An arithmetical approach to apportioning costs, based on the time and effort expended on the different issues, would probably favour the plaintiffs.

1. Taking an evaluative approach, however, it seems to me that neither side is a clear winner in this proceeding.  Rather, the parties had mixed success.  The plaintiffs succeeded in establishing their ownership of the disputed land.  The Council successfully defended the validity of its decision.  It is not clear that the effect of gazetting the Council’s declaration will be to vest ownership of the easement in the Council, as the parties had assumed it would.[8]  I consider that an order that the parties bear their own costs of the proceeding reflects the substantive result, and is fair and reasonable in all the circumstances of the case.

   [8]Reasons, [87]–[89].

1. I will make a declaration in the form agreed, and will order that the parties are to bear their own costs of the proceeding.  The proceeding will otherwise be dismissed.