Multistar Pty Ltd v The Minister for Urban Affairs and Planning [No. 3]
[2001] NSWLEC 101
•05/28/2001
Reported Decision: 114 LGERA 106
Land and Environment Court
of New South Wales
CITATION: Multistar Pty Ltd v The Minister for Urban Affairs and Planning & Anor [No. 3] [2001] NSWLEC 101 PARTIES: APPLICANT:
Multistar Pty Ltd
ACN 072 013 275FIRST RESPONDENT:
SECOND RESPONDENT:
The Minister for Urban Affairs and Planning
Sydney City CouncilFILE NUMBER(S): 40184 of 1999 CORAM: Lloyd J KEY ISSUES: Costs :- apportionment of costs - whether discrete question could have been determined separately - applicant unsuccessful on all issues
Practice & Procedure : - amendment of published reasons
LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 15 r 9 CASES CITED: Bailey v Marinoff (1971) 125 CLR 529;
Bromley v Bromley [1965] P 111;
DJL v Central Authority (2000) 74 ALJR 706;
James v Thomas H Kent & Co Ltd [1950] 2 All ER 1099; [1957] 1 KB 557;
Milne v Attorney-General (Tas) (1956) 95 CLR 460;
Multistar Pty Ltd v The Minister for Urban Affairs and Planning [No. 2] (2000) 111 LGERA 319;
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Schwarstein v Watson (1985) 3 NSWLR 134DATES OF HEARING: 16/03/2001 DATE OF JUDGMENT:
05/28/2001LEGAL REPRESENTATIVES:
APPLICANT:
Mr N A Hemmings QC (Solicitor)
SOLICITORS:
Allen Allen & HemsleyFIRST RESPONDENT:
SECOND RESPONDENT:
MR M J Leeming (Barrister)
SOLICITORS:
Christine Hanson
Mr S D Rares (Barrister)
SOLICITORS:
Blake Dawson & Waldron
JUDGMENT:
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IN THE LAND AND Matters No: 40184 of 1999
ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date: 28 May 2001
Multistar Pty Limited
Applicant
v
Minister for Urban Affairs and Planning
First Respondent
Sydney City Council
Second Respondent
REASONS FOR JUDGMENT [No. 3]
1. On 4 December 2000 I delivered judgment in judicial review proceedings brought by the applicant against the first respondent (the Minister for Urban Affairs and Planning) and the second respondent (Sydney City Council). The applicant claimed that Central Sydney Local Environmental Plan (Amendment No. 9) was void, or alternatively, that cl 48A thereof was void, or further alternatively, that parts of cl 48A thereof were void. The applicant alleged that cl 48A was void by reason of an inconsistency with Division 10 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”), in that cl 48A unlawfully purported to give a development control plan mandatory and binding effect, that there was a denial of procedural fairness in the making of the instrument, that a purported delegation to the Council’s General Manager to sign the certificate under s 65 of the EP&A Act was ineffective, that there was a failure to comply with s 69, that there was a failure to consult as required by s 62, that there was a failure to consider whether a hearing should be held in accordance with s 68(1), that there was a failure to comply with s 68(4), and that the instrument was made in breach of s 70.
2. The respondents denied each of the applicant’s allegations. On the afternoon of the first hearing day the first respondent sought and was granted leave to raise a further defence that the applicant was estopped from questioning in the proceedings the validity of the local environmental plan (LEP) or of cl 48A of the LEP. I upheld the defence of estoppel, so that the applicant’s claim failed in limine. I also found in favour of the respondents in each of the claimed grounds of the invalidity of both the LEP and of cl 48A thereof (Multistar Pty Ltd v The Minister for Urban Affairs and Planning & Anor [No. 2](2000) 111 LGERA 319).
Costs
3. The successful respondents now seek orders for the costs of the proceedings. The applicant opposes any such order and on the contrary seeks an order that the first respondent pay its costs, which are said to be unnecessary and abortive. The applicant alternatively submits that in the event that some costs are awarded against it, it should only be required to pay costs of one, not both respondents.
4. Mr N A Hemmings QC, appearing for the applicant, made the following submissions. (1) The defence of estoppel should have been pleaded as a bar to the proceedings and should have been raised by the notice of motion to strike out or permanently stay the proceedings. (2) If that had been done there would have been no need to proceed with the hearing on the substantive issues and to put the parties to the associated expense. (3) As the council was joined as a second respondent on its own motion, as its defences on the substantive issues were essentially the same as those of the first respondent and as it raised no defence of estoppel itself other than to adopt the submissions of the first respondent, the applicant should not have to bear two sets of costs. (4) By its conduct the first respondent caused the applicant to incur unnecessary and abortive costs which should be paid by the first respondent.
5. Mr M J Leeming, appearing for the first respondent, submitted that leave to amend its points of defence to raise the estoppel point was sought and granted on the afternoon of the first day of the hearing; that the amendment raised a pure point of law and did not significantly lengthen the hearing. Had the estoppel point been the only reason for the applicant’s failure then Mr Leeming conceded that there might be some basis for not applying the ordinary practice as to costs; however, estoppel was only one of many grounds on which the application was dismissed. In Mr Leeming’s submission, it would be an inappropriate exercise of the Court’s discretion to penalise the first respondent for successfully defeating the merits of the claim.
6. Mr S D Rares SC, appearing for the council, relied upon the general rule that a wholly successful respondent should receive its costs. The respondents were wholly successful in all issues. It was not merely a technical win for the respondents on the basis of an estoppel, but a substantive win in which it was found that the council had properly followed every procedure that had been put in issue. He also submitted that, because the applicant’s case had consisted in a two-pronged attack against the conduct of both respondents, both had been proper and necessary parties to the litigation and should be entitled to their costs.
7. In my opinion there should be an order that the unsuccessful applicant pay the costs of both respondents, following the general rule “that a wholly successful defendant should receive his costs unless good reason is shown to the contrary” (per Dixon CJ, McTiernan, Williams, Fullager and Taylor JJ in Milne v Attorney-General (Tas) (1956) 95 CLR 460 at 477, followed by Gaudron and Gummow JJ in Oshlack v Richmond River Council (1998) 193 CLR 72 at 86). No good reason to the contrary has been shown in this case. Although the estoppel point might have been raised and determined first as a separate issue, Mr Hemmings conceded when it was raised that it involved only the preparation of legal argument and, provided he had time to prepare, he was not otherwise prejudiced. The fact remains that all of the issues were argued and findings were made on each of them. The estoppel point was only one of many reasons why the application was dismissed. It would be unusual for the respondents, who were successful in each of the issues, to be deprived of their entitlement to the whole of their costs. I see no reason to depart from the general rule.
8. I am also of the view that the council was a proper party. It was the council’s procedures that were sought to be impugned and the council’s interests were potentially affected. Although it was the Minister who made the LEP which the applicant sought to impugn, the procedures which led to it were under the control of the council. Most of the challenges to the validity of the LEP and of cl 48A thereof were based upon suggested failures of the council to comply with the EP&A Act in the making of the draft LEP. The council was entitled to defend what it did in the making of draft LEP and to be heard generally thereon. Moreover, the Court was assisted in reaching its decision by not only the submissions of Mr Hemmings for the applicant and Mr Leeming for the Minister, but also by the submissions of Mr Rares for the council.
Amendment of the judgment
9. The council seeks an order that the reasons for judgment be amended by the variation or deletion of par [53]. That paragraph contains a statement, for the reasons set out therein, that s 5.2 of the Central Sydney Development Control Plan 1996 is beyond power and void. It is conceded that par [53] is obiter. The council submits that this paragraph should be removed or altered because it is unnecessary to support the outcome of the proceedings, but may have ramifications for the council’s affairs beyond the confines of the subject litigation.
10. Mr Rares submits that a judge may make changes to the substance of a judgment which go beyond the making of changes of expression, grammar or the correction of typographical errors. He pointed out that such a change had been made by Denning LJ in James v Thomas H Kent & Co Ltd between the publication of the judgment in [1950] 2 All ER 1099 and a later revised version in the authorised reports at [1957] 1 KB 557, noted by Deane J in Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 268-269 and Priestly JA in Schwarstein v Watson (1985) 3 NSWLR 134 at 150. Mr Rares also referred to Bromley v Bromley [1965] P 111, in which the Court of Appeal endorsed the practice of judges correcting the transcript of judgments before publication to the parties or law reporters. Mr Rares also relies upon Pt 15 r 9 of the Land and Environment Court Rules 1996 which provides that the Court can recall and re-open a judgment at any time before the judgment is perfected by the sealing and entry of the Court’s orders.
11. The judgment in the present case, however, has been perfected and the orders of the Court have been drawn up, signed and sealed. It is not open for the Court to now review or alter its judgment. I need only refer to the well-known judgment of Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 at 530:`
Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.
12. In the same case, Menzies J said (at 531) that the NSW Court of Appeal lacked any inherent jurisdiction “to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court”.
13. As Barwick CJ recognised, the principle which he stated may be subject to any specific and relevant statutory provision. Part 15 r 9 of the Court’s Rules is such a provision, but it is limited to the circumstances set out in the rule and so does not apply to the present case.
14. In DJL v Central Authority (2000) 74 ALJR 706 the High Court, reaffirming Baliey v Marinoff, held that the Full Court of the Family Court of Australia, being a statutory court, had no power (either inherent or implied) to re-open perfected orders disposing of proceedings.
15. In the case of Bromley v Bromley, upon which Mr Rares relies, the court held that it is proper for a judge to correct the transcript of an extempore judgment before publication to the parties, not only to correct mistakes, but also to alter words which do not express his intended meaning. However, a judge is not permitted to make changes which alter the substance of what the judge actually said.
16. Gleeson CJ, when he was the Chief Justice of New South Wales, said:
A judicial officer revising a transcript of reasons for a decision is entitled to alter the transcript where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say; or where there is some infelicity of expression which the judicial officer desires to remedy.
- ( Judicial Officers’ Bulletin , Vol. 9, No. 4, May 1997)
17. In the present case, however, the paragraph of the judgment which Mr Rares seeks to change expresses clearly the intended meaning and states precisely what was meant. Moreover, the judgment in question was not one which was delivered extempore, but was a reserved judgment, and reserved judgments typically go through several drafts before being published. In these circumstances the comments in Bromley and by Gleeson CJ, noted above, apply with even greater force.
18. Notwithstanding what Denning J may have done in 1951 in James v Thomas H Kent & Co, I am of the view that the judgments of the High Court to which I have referred are binding upon me. In the absence of a statutory provision expressly enabling me to do so, I do not have jurisdiction to change the judgment.
19. If I am wrong in so concluding, then in exercise of the Court’s discretion, I would not be inclined to alter the judgment. I have noted that par [53] is obiter. It is thus open to the parties, or anyone else, to raise the same question in any subsequent case in which it may arise.
Orders
20. There will be an order that the applicant pay the respondents’ costs. The applicant must also pay the first respondent’s costs of the hearing on 16 March 2001. As between the applicant and the second respondent, because the applicant has successfully resisted the application to amend the judgment whereas the second respondent succeeded in obtaining an order for costs on that date, the two costs should cancel each other out and there should be no order as to costs between these parties in relation to the hearing of 16 March 2001. Accordingly I make the following formal orders:
- 1. The applicant pay the first respondent’s costs, including the costs of the hearing of 16 March 2001.
2. The applicant must pay the second respondent’s costs, excluding the costs related to the hearing of 16 March 2001.
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