The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning (No 2) - [2009] SASC 390

Supreme Court of South Australia
(Land and Valuation Division)
THE CHELTENHAM PARK RESIDENTS ASSOCIATION INC v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ORS (No 2)
[2009] SASC 390
Judgment of The Honourable Justice Bleby
21 December 2009
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - CONDUCT OF PARTIES - UNNECESSARY PARTIES AND APPEARANCES - PARTY UNNECESSARILY APPEARING
Application for costs by third defendant to application for judicial review of a decision by a Minister to approve a variation to a Development Plan – plaintiff commenced action against Minister and State – third defendant joined as a party on its own application – third defendant had commercial interest in the land the subject of the variation – whether the question of plaintiff’s liability to the third defendant for costs was reserved when an order was made joining the third defendant as a party – whether third defendant was a necessary party to the action – whether interests of the third defendant were adequately represented by the first and second defendants – consideration of value and relevance of submissions made and evidence led by third defendant – consideration of offer of settlement made by third defendant – no order as to costs made as between plaintiff and third defendant.
Local Government Act 1999 (SA); Supreme Court Civil Rules 2006 (SA) r 74, r 200, r 269, referred to.
Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 1 WLR 1176; Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning [2009] SASC 303, discussed.
Oshlack v Richmond River Council (1998) 193 CLR 72; Liverpool City Council v Weir (1984) 51 LGRA 250, considered.

THE CHELTENHAM PARK RESIDENTS ASSOCIATION INC v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ORS (No 2)
[2009] SASC 390
Land and Valuation Division

BLEBY J. On 25 September 2009 I dismissed the plaintiff’s application for judicial review of a decision by the first defendant, the Minister for Urban Development and Planning (“the Minister”), to approve a variation to a Development Plan. The Minister, the State of South Australia (“the second defendant”) and the third defendant, the South Australian Jockey Club Inc (“the SAJC”) each applied for costs. The plaintiff does not oppose an order for costs in favour of the Minister and the State of South Australia but says that there ought to be no order as to costs in respect of the SAJC.
The proceedings
On 17 November 2008 the plaintiff commenced these proceedings seeking judicial review of a decision of the Minister to approve an amendment to the Charles Sturt (City) Development Plan. The summons named the Minister as the first defendant, and the State Government of South Australia as the second defendant. An amended summons naming the State of South Australia as the second defendant was issued on 23 January 2009. I will refer to the first and second defendants together as “the State”.
On its own application, the SAJC was joined as the third…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning (No 2) [2009] SASC 390
Case: [2009] SASC 390
Decision Date: 21 December 2009

CaseChat Overview and Summary

In this case, the plaintiff, The Cheltenham Park Residents Association Inc, sought judicial review of a decision by the Minister for Urban Development and Planning to approve a variation to a Development Plan. The State was the first defendant, and a third defendant, the SAJC, was joined as a party on its own application, having a commercial interest in the land subject to the variation. The plaintiff's application for costs against the third defendant was considered by the court.

The legal issues the court needed to decide included whether the question of the plaintiff's liability to the third defendant for costs was reserved when an order was made joining the third defendant as a party, whether the third defendant was a necessary party to the action, and whether the interests of the third defendant were adequately represented by the first and second defendants. The court also considered the value and relevance of submissions made and evidence led by the third defendant, as well as the offer of settlement made by the third defendant.

In its reasoning, the court noted that the third defendant had offered to forego its costs if the plaintiff discontinued its action. However, the court found that this offer had less significance as the question of whether the third defendant would be entitled to claim any costs from the plaintiff at all was still a live issue. The court concluded that the third defendant was not entitled to its costs. Consequently, the court made no order as to costs between the plaintiff and the third defendant.

The final orders of the court were that the plaintiff would pay the costs of the first and second defendants to be adjudicated and that there be no order as to costs between the plaintiff and the third defendant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLEBY J

By a letter from the SAJC’s solicitors to the plaintiff’s solicitors dated 17 March 2009 the SAJC offered to forego its costs if the plaintiff discontinued its action. The SAJC sought to rely on this letter in support of its application for costs. While I accept that an offer by a party to bear its own costs can be a major concession, in the circumstances of this case the offer has less significance. The question of whether the SAJC would be entitled to claim any costs from the plaintiff at all was, and remained, very much a live issue. That much is acknowledged at the beginning of the letter of 17 March 2009, in which the SAJC’s solicitors “reiterate our client’s acceptance of costs of the action being reserved for further argument.” I have concluded that the SAJC is not entitled to its costs. For those reasons, an offer by the SAJC to bear its own costs can have little weight in its application for costs.Conclusion For these reasons, there will be an order that the plaintiff pay the costs of the first and second defendants to be adjudicated and that there be no order as to costs as between the plaintiff and the third defendant.

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

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