Pastoral Management Pty Ltd v Minister for Local Government
[2014] WASC 378 (S)
•2 DECEMBER 2014
PASTORAL MANAGEMENT PTY LTD -v- MINISTER FOR LOCAL GOVERNMENT [2014] WASC 378 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 378 (S) | |
| Case No: | CIV:2956/2013 | ON THE PAPERS | |
| Coram: | CHANEY J | 2/12/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Applicant to pay each of the respondent's costs in CIV 2956 of 2013 Applicant to pay each of the respondent's costs in CIV 1850 of 2014 | ||
| B | |||
| PDF Version |
| Parties: | PASTORAL MANAGEMENT PTY LTD MINISTER FOR LOCAL GOVERNMENT CITY OF KARRATHA ATTORNEY GENERAL OF WESTERN AUSTRALIA AND MINISTER FOR COMMERCE In Capacity As Representative Of The Governor Of Western Australia, entitled to exercise certain statutory powers under the Local Government Act 1995 (WA) |
Catchwords: | Costs Whether costs should follow the event Whether there was a supervening event |
Legislation: | Local Government Act 1995 (WA) |
Case References: | One Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
MINISTER FOR LOCAL GOVERNMENT
First Respondent
CITY OF KARRATHA
Second Respondent
- Applicant
AND
ATTORNEY GENERAL OF WESTERN AUSTRALIA
AND MINISTER FOR COMMERCE In Capacity As Representative Of The Governor Of Western Australia, entitled to exercise certain statutory powers under the Local Government Act 1995 (WA)
First Respondent
MINISTER FOR LOCAL GOVERNMENT
Second Respondent
CITY OF KARRATHA
Third Respondent
Catchwords:
Costs - Whether costs should follow the event - Whether there was a supervening event
Legislation:
Local Government Act 1995 (WA)
Result:
Applicant to pay each of the respondent's costs in CIV 2956 of 2013
Applicant to pay each of the respondent's costs in CIV 1850 of 2014
Category: B
Representation:
CIV 2956 of 2013
Counsel:
Applicant : No appearance
First Respondent : No appearance
Second Respondent : No appearance
Solicitors:
Applicant : Allens
First Respondent : State Solicitor for Western Australia
Second Respondent : McLeods Barristers & Solicitors
CIV 1850 of 2014
Counsel:
Applicant : No appearance
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Solicitors:
Applicant : Allens
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : McLeods Barristers & Solicitors
Case referred to in judgment:
One Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548
1 CHANEY J: On 17 October 2014 I dismissed the applicant's applications in both CIV 2956 of 2013 and CIV 1850 of 2014, and reserved the question of costs, which was to be decided on the papers. It is common ground between the parties that the applicant should pay the costs of the respondents in relation to CIV 1850 of 2014 and an order should be made to that effect. However, in relation to CIV 2956 of 2013, the applicant seeks the following costs orders:
i. There be no order as to costs; or
ii. Alternatively, there be no order as to costs for the period up to the date of the Local Government (Roebourne - Rectification of Omission) Order (rectification order); and
iii. Further or in the alternative, the applicant be awarded costs thrown away until the date of publication of the rectification order.1
2 The applicant contends that these orders should be made because the publication of the rectification order in the Government Gazette on 24 April 2014 constituted a supervening event which:
i. frustrated a ground of the applicant's application which would otherwise have been successful;2 and
ii. caused the work it had done to be largely superseded thereby incurring wasted costs.3
3 The first and second respondents in CIV 2956 of 2013 say that those contentions should not be accepted. They submit that the usual position of costs following the event should apply and that the applicant should be ordered to pay their costs of the proceedings. Further, the City of Karratha (City), which is the second respondent in CIV 2956 of 2013 and the third respondent in CIV 1850 of 2014, contends that the applicant should not have included the City in either of its applications.4
Did the rectification order cause the work done by the applicant in CIV 2956 of 2013 to be superseded?
4 On 27 June 2013, the first respondent determined that the basis for rating certain land in the Shire of Roebourne (now the City of Karratha) should be changed from unimproved value to gross rental value (the determination). In making the determination, the first respondent did not expressly exclude s 6.29(2) of the Local Government Act 1995 (WA). The rectification order of 24 April 2014 corrected the first respondent's omission of s 6.29(2).
5 The applicant submits that the rectification order constitutes a supervening event in the nature of that discussed by Burchett J in One Tel Ltd v Deputy Commissioner of Taxation5, that would provide a reason for the Court to depart from the general rule that costs follow the event. In One Tel, his Honour said:
In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs.
6 I do not accept the applicant's submission that the rectification order constituted a supervening event. That is because the omission that the rectification order corrected had never been a ground of the applicant's application prior to the rectification order being published, and cannot rightly be said to have been a subject of the dispute. The applicant submits that between 24 December 2013 and 24 April 2014 it 'amended its application, and prepared affidavit material and written submissions in support of its application, and particularly, the issue addressed by the rectification order'.6 However, examination of the documents filed by the applicant between 24 December 2013 and 24 April 2014 does not support this submission.
7 The applicant's application for judicial review which was filed on 24 December 2013 did not challenge the determination on the basis that the first respondent had omitted to expressly exclude the application of s 6.29(2) of the Local Government Act. The applicant amended its application on 6 March 2014, but the amended application still did not challenge the determination on that ground. On 28 March 2014, the applicant filed its written outline of submissions and the first respondent's omission to expressly exclude s 6.29(2) still did not form part of the applicant's case. Whilst the applicant made a reference in those submissions to s 6.29(2), it contended that 6.29 did not apply because the determination applied to a pastoral lease and not to a mining tenement. Nothing further was filed by the applicant prior to the publication of the rectification order on 24 April 2014. It follows that none of the work done or affidavits filed on behalf of the applicant before 24 April 2014 were affected by the rectification order because the issue which it corrected did not form any part of the applicant's case. Therefore, the applicant's contention that the rectification order caused the work it had done to be largely superseded cannot be sustained.
Did the rectification order frustrate a ground of the application in CIV 2956 of 2013 that otherwise would have been successful?
8 The applicant's contention that the rectification order frustrated a ground of its application that otherwise would have been successful cannot be sustained. The first respondent's omission to exclude s 6.29(2) only became part of the applicant's case when it amended its application for the third time on 12 June 2014, that is, after the publication of the rectification order. The applicant proceeded to the hearing on the basis that if any other ground succeeded then the determination would be invalid even if the rectification order corrected the omission, and that affidavit evidence filed both before and after the publication of the rectification order was relevant to those other grounds.7 The applicant maintained those other grounds at the hearing despite the fact that the first respondent conceded prior to the hearing that, if the rectification order was invalid, the determination did not have its intended effect. The applicant was ultimately unsuccessful in relation to each of those other grounds, which occupied considerable time at the hearing.
The City of Karratha's submission that it should not have been included in the applications in CIV 2956 of 2013 and CIV 1850 of 2014
9 In its submissions as to costs,8 the City contends that 'there was no reason for the applicant to include [the City] in its application',9 and that 'although [the City] had a significant interest in the outcome of the application, it was not able to speak to the actions of the first respondent and it (ie [the City]) would accept the decision of the Court'.10 The City says that there was no need for the applicant to seek a review of its decision, and that the application was 'convoluted, relied on voluminous affidavit materials, and on all grounds was found to have no substance'.11
10 Since the applicant conceded that it should pay the costs of the third respondent in CIV 1850 of 2014, that is, the City, it is unnecessary to deal with the City's contention that it should not have been made a party to the extent that it relates to those proceedings.
11 In relation to CIV 2956 of 2013, the City is entitled to its costs as a successful party, and thus it is not strictly necessary for me to deal with its contention as to whether it should have been a party. For completeness, however, I consider that it was appropriate that the City be made a party to the application in CIV 2956 of 2014 because, in the initial application and each amended version of it, the applicant sought a remedy against the City, being a writ of certiorari quashing its decision of 15 August 2013 to implement a purported decision of the first respondent by levying rates on the basis of gross rental value.
Conclusion
12 There should be an order that the applicant pay each of the respondent's costs of the applications in CIV 2956 of 2013 and CIV 1850 of 2014, to be taxed if not agreed.
1Applicants submissions as to costs, filed 5 November 2014 [3].
2Applicants submissions as to costs, filed 5 November 2014 [2], [12].
3Applicants submissions as to costs, filed 5 November 2014 [16].
4Second respondent's submissions as to costs, filed 7 November 2014 [8].
5One Tel Ltd v Deputy Commissioner of Taxation(2000) 101 FCR 548, 553-554 [6] - [7].
6 Applicants submissions as to costs, filed 5 November 2014 [16].
7Applicant's submissions in reply, filed 20 June 2014 [5].
8 Second respondent's submissions as to costs, filed 7 November 2014.
9 Second respondent's submissions as to costs, filed 7 November 2014 [8].
10 Second respondent's submissions as to costs, filed 7 November 2014 [6].
11 Second respondent's submissions as to costs, filed 7 November 2014 [20(b)].
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