Ogden v City of South Perth

[2018] WASC 270

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   OGDEN -v- CITY OF SOUTH PERTH [2018] WASC 270

CORAM:   ALLANSON J

HEARD:   22 AUGUST 2018

DELIVERED          :   30 AUGUST 2018

FILE NO/S:   CIV 1663 of 2018

BETWEEN:   GEOFREY CHARLES OGDEN

First Plaintiff

GAINTIME INVESTMENTS PTY LTD

Second Plaintiff

WINDSOR HOTEL SOUTH PERTH PTY LTD

Third Plaintiff

AND

CITY OF SOUTH PERTH

Defendant

Catchwords:

Costs - Where application discontinued

Legislation:

Land Act 1933 (WA), s 33(2)

Result:

No order as to costs

Category:    B

Representation:

Counsel:

First Plaintiff	:	Mr H Jackson
Second Plaintiff	:	Mr H Jackson
Third Plaintiff	:	Mr H Jackson
Defendant	:	Mr M D Reid

Solicitors:

First Plaintiff	:	Hager Grubb & Partners Lawyers
Second Plaintiff	:	Hager Grubb & Partners Lawyers
Third Plaintiff	:	Hager Grubb & Partners Lawyers
Defendant	:	Jackson McDonald

Case(s) referred to in decision(s):

Lafferty v Waterton [2016] WASCA 183

Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84

ALLANSON J:

1. In 2016 and 2017, the City of South Perth made decisions permitting the operation of commercial functions or events, including a 'Suited Melbourne Cup Event' and the Embargo Container Bar, on Sir James Mitchell Park on the South Perth Foreshore.  Alcohol was served at each of the events. 

2. The plaintiffs own and operate The Windsor Hotel in South Perth. 

3. In his affidavit in support of the application,[1] the first plaintiff, Geofrey Charles Ogden deposed that these events and functions compete with The Windsor and other local business on an unequal and unfair basis.  The application was not, however, based on unfair competition but on the ground that the City permitted or authorised these events on land that was reserved or had been resumed for recreation. [2]

   [1] Affidavit of Geofrey Charles Ogden, dated 16 April 2018.

   [2] Referred to in the application as the Reserve Land and the Conditional Lots.

4. On the first hearing of the application, on 9 May 2018, I ordered the City to give limited discovery of:

   (a)any lease, licence, permit or other authorisation by which the defendant permitted the Embargo Container Bar to occupy and operate on the Reserve Land; and

   (b)any lease, licence, permit or other authorisation by which the defendant permitted the Suited Melbourne Cup Event to occupy and operate on the Conditional Lots.

5. On 21 June 2018, the application was amended to seek relief by way of declaration and injunction of two decisions:

   (1)to allow part of Sir James Mitchell Park, South Perth to be used for the purposes of a pop-up bar and associated car parking between 10 November 2016 and 18 December 2016; and

   (2)to allow part of Sir James Mitchell Park, South Perth to be used for the purposes of a private, ticketed, for profit function and associated car parking between 4 November 2017 and 14 November 2017.

6. The grounds of the application were:

   1.Sir James Mitchell Park, South Perth consists of land including:

   (1)Crown Land Reserve 34565 that was vested in the Respondent for the designated purpose of 'Recreation' under the s 33(2) of the Land Act 1933 (WA) (Reserved Land); and

   (2)fee simple land the registered proprietor of which is the Respondent that was resumed for the purposes of 'Swan River Improvements and Foreshore Recreation Grounds' under the Public Works Act 1902‑1933 and the Swan River Improvement Act 1925-1939 (Conditional Land).

   2.The Reserved Land and the Conditional Land is also reserved under the Metropolitan Region Scheme (MRS) for the purpose of 'Parks and Recreation'.

   3.The Reserved Land and the Conditional Land may only be used for the purposes for which, respectively, it is reserved and it was resumed except, in the case of the reservation under the MRS, with the written approval of the Western Australian Planning Commission (WAPC).

   4.The Decisions permitted the Reserved Land and/or the Conditional Land to be used for purposes inconsistent with the purposes for it was reserved and/ or resumed.

   5.The Decisions were not made subject to the prior written approval of the WAPC.

   6.Unless restrained, the Respondent will again permit the use of the Reserved Land and/or the Conditional Land and, in any event, land forming part of the Sir James Mitchell Park reserved under the MRS for 'Parks and Recreation' for purposes inconsistent with the purposes for which the land is reserved and/ or was resumed.

7. On 21 June 2018, I made orders requiring the City to file any affidavits in response by 16 July 2018.  The City filed six affidavits on 17 July, and a further affidavit on 20 July 2018.  In the affidavits, the City addressed in detail the historical record regarding the reservation and resumption of the Reserved Land and the Conditional Land,[3] as well as the grant of approval for and operation of the relevant events.

   [3] Affidavit of Jade Ashlee Olynyk, dated 17 July 2018.

8. In about July 2018, the Director of Liquor Licensing published a new policy, effective from 11 July 2018.  The evidence before me did not disclose when the policy was first brought to the notice of the plaintiffs.  The policy states that it

   provides guidelines for both existing licensees and persons seeking to be temporary licensees, to sell or supply liquor at a temporary bar/s ancillary to an event.

   Specifically, this policy seeks to provide guidance on:

   •    what constitutes an 'event';

   •    information on who and how to apply for a licence for a temporary bar; and

   •    the factors involved in assessing applications.

9. The plaintiffs say that the introduction of the policy may meet the concerns that led to this application.  On 31 July 2018, the parties agreed to adjourn for 21 days, during which both parties could consider their positions.  The plaintiffs then sought leave (if leave was required) to discontinue the application.

10. The City did not oppose the application to discontinue.  It sought its costs of the application to date.  The plaintiffs submitted that the court should make no order as to costs.

Costs where an application is discontinued.

1. The general principles were stated by the Court of Appeal in Lafferty v Waterton:

   It is trite law that the court has a very wide discretion as to costs, limited only by the requirement that it be exercised judicially.  The general rule is that the successful party is entitled to an order for its costs.  That is because ordinarily fairness requires that a party who has unjustifiably brought the other party before the court, or who has unjustifiably resisted a claim to which the other party is entitled, should have to meet the costs that have been incurred by the other party.

   The general rule, however, is based upon the identification of the successful party by a hearing on the merits.  In cases where the matter is settled without a determination on the merits the court is deprived of the factor that will usually determine how the discretion as to costs is to be exercised.  As McHugh J pointed out in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, 624, the court cannot try a hypothetical action between the parties and burden the parties with the costs which by their settlement they had avoided.

   There may, however, be cases where despite the lack of a final determination the court is able to find that the settlement was in fact simply a capitulation by one party in the face of probable defeat, where an order for costs may be appropriate.  There may also be cases where the court is able to conclude that one party has acted so unreasonably that the other party should be entitled to an order for costs.  But where it appears that both parties have acted reasonably in commencing and defending the proceedings, and their conduct continued to be reasonable until the proceedings came to an end, the proper exercise of the costs discretion will usually mean that the court will make no order as to costs:  Ex parte Lai Qin, 625. [4]

   [4] Lafferty v Waterton [2016] WASCA 183 [16] - [18].

2. In Nichols v NFS Agribusiness Pty Ltd, Basten JA said:

   although it is possible to make an order for costs against one party if it can be shown that it has invited the litigation by its unreasonable behaviour, or has unreasonably pursued the litigation, such an order should only be made where that judgment is manifest by reference to known circumstances, not in dispute between the parties.  If the question cannot be answered without reviewing large swathes of evidence and resolving, on a tentative basis, disputed questions of fact, the task should not be embarked upon.[5]

   [5] Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 [8].

3. This is not a case where the merits of the application or the defence to it are so clear that, without carefully addressing the merits, I can decide which party would have succeeded in any event. Without addressing the merits, I can also make no finding about whether the plaintiffs acted unreasonably in commencing and prosecuting their application, or whether the City acted unreasonably in defending it.  Although the decisions to be reviewed are from 2016 and 2017, it was not obviously unreasonable for the plaintiffs to apprehend more decisions in the future to the same effect.

4. I have considered the reason why the plaintiffs say they will not proceed with their claim.  The supervening event of the publication of the new policy by the Director of Liquor Licensing does not make either the claim, or the defence to it, futile.  The question of what use can be made of the relevant land remains unresolved.  But the policy offers an alternative means by which the plaintiffs' commercial concerns may be satisfied.  I do not believe that consideration of the plaintiffs' reasons or motive for no longer wishing to proceed should lead to an order for costs against them.  Their conduct in discontinuing in the light of the new policy is not patently unreasonable.

5. Finally, I have had regard to the timing.  The policy is effective from 11 July 2018.  It is not clear when the plaintiffs first became aware of it, but there is no evidence of unreasonable delay leading the City to incur unnecessary costs. 

6. I will make no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ZW
ASSOCIATE TO THE HONOURABLE JUSTICE ALLANSON

30 AUGUST 2018