The Liberal Party of Australia (Western Australia Division) Inc v City of Gosnells
[2013] WASC 267
•22 JULY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: THE LIBERAL PARTY OF AUSTRALIA (WESTERN AUSTRALIA DIVISION) INC -v- CITY OF GOSNELLS [2013] WASC 267
CORAM: MARTIN CJ
HEARD: ON THE PAPERS
DELIVERED : 22 JULY 2013
FILE NO/S: CIV 1148 of 2013
BETWEEN: THE LIBERAL PARTY OF AUSTRALIA (WESTERN AUSTRALIA DIVISION) INC
Plaintiff
AND
CITY OF GOSNELLS
Defendant
Catchwords:
Costs - Costs order when no decision on the merits - Party successful in achieving relief sought without trial - Turns on own facts
Legislation:
Planning and Development Act 2005 (WA)
Result:
The defendant pay the plaintiff's costs of the proceedings to be taxed if not agreed
Category: B
Representation:
Counsel:
Plaintiff: Mr S Penglis
Defendant: Mr K M Pettit SC & Mr N Douglas
Solicitors:
Plaintiff: Herbert Smith Freehills
Defendant: McLeods
Case(s) referred to in judgment(s):
Becker v City of Onkaparinga (2010) 275 ALR 390
Essendon Health Care Pty Ltd v The Honourable Judy Moylan [1998] FCA 94
Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469
Vince v City of Armadale [2005] WADC 9
MARTIN CJ:
Summary
In these proceedings the Liberal Party of Australia (Western Australia Division) Inc (the Party) sought declarations with respect to the invalidity of certain parts of Town Planning Scheme No 6 (TPS 6) of the City of Gosnells (the City) and a planning policy (Policy) promulgated by the City which the Party asserted invalidly restricted communication concerning political or government matters, contrary to the freedom of communication with respect to such matters implied in the Australian Constitution (the Constitution). After a number of interlocutory hearings, the City proffered an undertaking as to the manner in which the local laws governing the display of electoral advertising and signage would be enforced by the City in terms which were acceptable to the Party.
As a consequence, the Party sought and obtained leave to discontinue the proceedings (if such leave is necessary). However, the proceedings have not yet been discontinued as there is an unresolved issue relating to costs. With the agreement of the parties, directions have been made for the resolution of those issues on the papers following the exchange of written submissions. Following the consideration of those submissions, for the reasons which follow I have concluded that the City should be ordered to pay the Party's costs of the proceedings to be taxed if not agreed, on the basis that the Party substantially succeeded in achieving the objectives of its litigation as a result of the concessions made by the City in the form of the undertakings which it ultimately proffered but which it refused prior to the commencement of proceedings.
By reason of the submissions proffered by the City in opposition to the Party's claim for costs, it will be necessary to traverse the positions adopted by the parties as reflected in the correspondence which preceded the commencement of proceedings, and that which transpired during the course of those proceedings in order to explain why the City's submissions must be rejected.
The correspondence prior to the commencement of proceedings
On 2 October 2012, the State Director of the Party wrote to the Chief Executive Officer (CEO) of the City advancing a number of general propositions in relation to the position adopted by the Party with respect to electoral advertising and signage, and the invalidity of purported legal constraints upon electoral advertising and signage by reason of the freedom of communication implied in the Constitution. It is a fair inference from the terms of the letter that it was intended for a broader audience than merely the City, being presumably other local authorities with local laws which restrain electoral advertising or signage.
At all events, an officer of the City replied to the Party's letter on 5 October 2012 enclosing copies of the local laws applicable within the municipality of the City, and advising that any signage which did not fall within the relevant exemption contained within TPS 6 would have to be approved by the City prior to erection or display, following the submission of a development application by the Party. The relevant exemption within TPS 6 exempts from the operation of that Scheme:
(1)(r)an election sign which is:
(i)erected on private property with the approval of the owner of that property, where such approval has been obtained prior to the erection of the election sign;
(ii)not in excess of 0.75 m² in area per property, except a corner property which may display one sign facing each thoroughfare of the corner;
(iii)erected not more than 28 days prior to the date of the election to which it relates;
(iv)removed within 7 days of the date of the election.
On 24 October 2012, another officer of the City wrote to the Party advising that four signs had been removed from the verge of certain properties within the municipality of the City. The letter advised that the signs would be available for collection upon payment of $150 per sign. The letter foreshadowed prosecution action 'if further signs are placed within council jurisdiction and cause an offence'. The letter also advised that failure to collect the impounded signs may lead to the City commencing court action seeking to recover the costs incurred.
The next day, 25 October 2012, the City wrote again to the Party in very similar terms, advising that another two signs situated on street verges had been removed and impounded.
By letter dated 30 October 2012, another officer of the City wrote to the owner of a piece of land within the municipal area of the City, advising that an advertising sign within that property had been observed by officers of the council. The letter advised that an application for approval of the sign had to be submitted to the City within 14 days from the date of the letter, but that it was unlikely that the City would approve any such application because of the provisions of the Policy which provided that:
Signage must indicate or display the name of the owner or occupier of the premises to which it relates and the nature of the business carried on therein. Third party advertising is not permitted.
The letter further advised that the application fee would be $417 plus an additional fee of $60 for the advertising of the application to neighbouring properties, and that the fee was not refundable should the application be refused by the City. The letter also asserted that erection and display of the signage constituted a breach of TPS 6 and the Planning and Development Act 2005 (WA), for which substantial penalties could be imposed.
Solicitors acting on behalf of the Party wrote to the City by letter dated 24 December 2012. After referring to earlier correspondence, in that letter the Party asserted that 'at a minimum, the restrictions provided by clause 1(r)(iii) and (iv) of Sch 5' of TPS 6 were invalid because they unreasonably constrained the freedom of communication on government and political matters implied by the Constitution. The letter further asserted that cl 1(r)(ii) was also invalid for the same reason, but that the Party was presently prepared to defer any further argument in that regard. The letter sought an undertaking that the City would not enforce cl 1(r)(iii) and (iv) and would not remove and impound any signage which complies with cl 1(r)(i) and (ii), and would return all election signage which has been removed and impounded to date.
Having regard to the relevant terms of TPS 6, in substance the Party was adopting the position that the temporal restriction upon the exemption of election signs under the Scheme was invalid, but was prepared to accept the restrictions of the Scheme which required exempt signs to be erected on private property with the approval of the owner and that the signs not exceed 0.75 m² in area on each property, except a corner property which could display one sign facing each thoroughfare.
The requirement to return all electoral signage which had been removed and impounded is a little difficult to reconcile with the terms of the letter, as it seems clear that all the signage which had been impounded was impounded because it had been placed on street verges rather than private property, with the consequence that TPS 6 had no application.
The letter concluded by threatening to commence legal proceedings seeking a declaration as to the invalidity of cl 1(r)(iii) and (iv), and interlocutory and permanent injunctions restraining the City from enforcing those provisions.
The City's solicitors responded to the letter from the Party's solicitors by letter dated 15 January 2013. The letter asserted that the focus of the letter from the Party's solicitors appeared 'to be election signs that were removed and impounded the City'. That proposition is not supported by the terms of the letter from the Party's solicitors which focused upon the invalidity of two provisions of TPS 6 which restricted the signs exempt from the provisions of the Scheme requiring development approval.
The letter from the City's solicitors went on to refer to the distinction between signs situated on a thoroughfare (or street verge), and signs erected on private property, pointing out that it was signs within the latter category to which TPS 6 applied.
The Party's solicitors replied by letter dated 22 January 2013 advising that:
Our client's concern is purely with election signs erected on or affixed to private property.
The letter reiterated the Party's earlier request for an undertaking not to take enforcement action in relation to election signs erected on or affixed to private property (being, I would infer, the precise undertakings enunciated in the letter of 24 December 2012, relating to the terms of cl 1(r) of TPS 6).
The City's solicitors replied by letter dated 25 January 2013 referring to the decision of the Supreme Court of South Australia in Becker v City of Onkaparinga (2010) 275 ALR 390, and asserting that the City was:
… satisfied that its regulatory regime relating to signs, including election signs, is valid, and that the City has the power and responsibility to ensure compliance with the regime by all members of the public, including candidates for election.
In the light of the stance adopted by the City, the Party then commenced these proceedings.
The course of the proceedings
The proceedings were commenced by an originating summons dated 30 January 2013, seeking declarations with respect to the invalidity of the relevant portion of the Policy (which prohibited third party advertising), and with respect to the invalidity of those parts of TPS 6 which prohibited the erection of political and/or election signs that were more than 0.75 m² in area, and/or erected more than 28 days prior to the date of the election to which the sign relates and/or not removed within seven days of the date of the election. In other words, the Party challenged the validity of the constraints upon the exemption of election signs from the operation of TPS 6 contained in cl 1(r)(ii), (iii) and (iv) of the scheme, together with the policy which prevented approval being given to signs placed on private property which did not identify the owner of the property and the business carried on. The originating summons also identified claims for interlocutory and permanent injunctive relief.
A chambers summons for interlocutory injunctive relief was issued contemporaneously with the originating summons. The minute of the orders sought would have restrained the City from removing any electoral signage situated within its municipal boundaries on or affixed to private property with the consent of the owner of the land until the trial of the action. However, the written submission filed in support of the application for interlocutory injunction made clear that the Party's challenge was limited to the three clauses of TPS 6 which I have identified, and the City's planning policy.
The matter came before me on 31 January 2013 when it was adjourned until 9.30 am the following day. When the matter came back on, I was advised that the application for an interlocutory injunction might be capable of resolution by the proffer of an undertaking by the City, but that further time was required. The matter was adjourned until 2.15 pm that day. When the matter came back before me I was advised that the City would proffer an undertaking in terms acceptable to the Party, covering the period until 14 days after the State election which was to be held on 9 March 2013. The City undertook to the court that it would not institute or threaten any enforcement proceedings during the period covered by the undertaking in respect of any political sign erected on or affixed to private property with the consent of the owner, which was not in excess of 1.2 m² in area, and where there were not in excess of three such signs per property (or four in the case of a property with two street frontages). This undertaking did not apply where, in the opinion of the City, a sign posed a safety risk by reason of its location or construction. The City further undertook that in the event that an application for development approval for a sign not covered by its undertaking was made, the City would not have regard to or apply the provision of its planning policy which prohibited third party advertising.
The matter came back before me for further directions on 8 March 2013. In the meantime, an affidavit sworn by the CEO of the City had been filed and served. That affidavit annexed documents showing that on 26 February 2013, the council of the City had resolved to initiate amendments to TPS 6 and its local planning policy which were described in the relevant council documents as reflecting 'the general intent of the current court undertakings on a permanent basis'.
When the matter came before me, it was clear that the Party did not regard the course proposed by the City with respect to its proposed amendment as satisfactory. However, given the evidence to the effect that the City was proposing to initiate amendments to its local laws dealing with the matters before the court, with the result that the proceedings were likely to become moot as and when those amendments were implemented, I directed the parties to confer with respect to the most efficacious means in which the remaining issues between the parties could be brought before the court and resolved, preferably prior to the federal election which is due to be held later this year.
Following that conferral, the City proffered an undertaking in essentially the same terms as previously proffered, save as to its temporal operation, in that the undertaking was to apply from the time of its proffer until the date on which any amendments to TPS 6 addressing the issues identified at the council meeting of 26 February 2013 came into effect. As that undertaking was satisfactory to the Party, it sought and obtained leave to discontinue the proceedings on 9 April 2013 and, as I have noted, directions were made to enable the disposition of outstanding issues with respect to costs.
Costs in the event of discontinuance - general principles
The general principles governing the exercise of the discretion with respect to costs in circumstances in which the proceedings have, for one reason or another, not been determined on their merits were conveniently set out by the Court of Appeal in Re Western Australian Planning Commission Ex Parte Solomon [2010] WASCA 236 (S) [9]:
The power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and, as a general rule, the successful party is entitled to his or her costs. Success in the action or on the particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 566 - 568 (McHugh J). However, when there has been no hearing on the merits, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 (McHugh J). The issue about costs cannot be resolved by the court trying a hypothetical action between the parties because this would burden the parties with the cost of a litigated action which, by the abandonment of the action, they have avoided: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (624). If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled, or its further prosecution became futile, the proper exercise of the costs discretion will usually mean the court will make no order as to costs of the proceedings: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (625). However, if after litigating for some time, one party effectively surrenders to the other, then the court may make a costs order against that party: One.Tel Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548, 552 - 553 (Burchett J); Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302. This might be justified where it was clear that the strength of the other side's case led to the surrender thereby allowing the inference to be drawn that the abandoning party had acted unreasonably in suing or defending in the first place.
To similar effect are the observations of Kaye J in Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469, 472:
Other circumstances in which a plaintiff might seek to discontinue might be after the close of pleadings in an action for possession [sic] the defendant has surrendered possession of the subject premises. In that event the plaintiff would have achieved what he set out to obtain by the issue of proceedings. It would be quite unjust and unfair if the plaintiff were denied his costs incurred in achieving the relief he sought by the commencement of his action. Furthermore, it would be quite unnecessary to force him to continue on to trial for the purposes of obtaining orders for possession and for costs. The procedure for obtaining leave to discontinue enables a party to bring to an end the litigation when the relief sought has been obtained.
See also Vince v City of Armadale [2005] WADC 9 [16]; Essendon Health Care Pty Ltd v The Honourable Judy Moylan [1998] FCA 94.
It is clear from the correspondence to which I have referred that the essential issue between the parties prior to the commencement of proceedings was the validity of the provisions of TPS 6 which limited exempt electoral signage to only that which was erected or displayed 28 days prior to an election and removed seven days after the date of the election. However, the Party had foreshadowed that in the event that it was required to institute proceedings, that portion of TPS 6 which limited the exemption to only those signs which were equal to or less than 0.75 m² per property would also be challenged. The City had indicated clearly and unequivocally, by a letter from its solicitors, that it would make no concession in relation to the invalidity of its local laws, and that they would be enforced. However, after the commencement of proceedings, the City's position changed almost immediately, and it proffered undertakings which removed the temporal restriction on the exemption for electoral signage, and which significantly eased the spatial restriction on such signage. It is therefore clear that the Party has substantially achieved its objectives by the commencement of these proceedings, as a result of concessions made by the City through the undertakings which it has proffered, and which are to remain in force until the process for the amendment of its local laws which has been initiated is completed. I was told by counsel that the amendment process was unlikely to be completed before the federal election which is due to be held later this year. On the face of it therefore, this is one of those cases in which the City might be described as having effectively surrendered, or at least given the Party substantially what it wanted to achieve when it issued these proceedings. It follows that, on the face of it, the Party should have its costs of the proceedings, including the cost of its application for an interlocutory injunction, as that application prompted the City to proffer its first undertaking.
However, the City opposes the Party's claim for costs on a number of grounds. The first matter raised by the City is the assertion that the evidence established that the City had never impounded a sign from private property and had never threatened to do so. However, while those assertions may be true, they are, with respect, beside the point. No issue was raised by the Party in the originating summons or the interlocutory injunction in relation to the City's actions in removing and impounding signs on public thoroughfares. Those matters were never in issue in these proceedings.
Next it is asserted that the interlocutory application was 'unsustainable and internally inconsistent'. The proposition that the interlocutory injunction is inconsistent with the Party's position with respect to the placement of signage on public thoroughfares is simply wrong, as no interlocutory relief was ever sought in relation to signs placed in public places.
The proposition that the interlocutory application was unsustainable because its terms were too broad ignores the written submissions filed in support of the application, which made it clear that the relief sought was limited to only those signs which complied with the provisions of TPS 6 other than those which the Party contended were constitutionally invalid. The submission also overlooks the fact that if, as the Party contended, provisions of TPS 6 were struck down as unreasonably restraining freedom of communication with respect to government and political matters, it would not be open to the court to itself introduce some lesser form of constraint which would not infringe that freedom - rather, the court would simply strike down the offending constraints, with the result that the Party would have been subject to little or no restrictions in relation to the erection and display of electoral signage on private property within the municipality of the City.
Next, the City makes a number of assertions with respect to its power to impound signs on public places or thoroughfares. However, for the reasons I have already given, those submissions are irrelevant as there was no issue raised in the proceedings with respect to such matters.
The City complains that it was never clear what the alleged fault was in the City's local laws that could be the subject of declaratory relief. That proposition is simply wrong. The originating summons made quite clear that the Party alleged that three aspects of the clause defining signs which were exempt from the requirements of planning approval under TPS 6, and a specific provision of the local planning policy were invalid because they unreasonably constrained the implied freedom of communication.
The City also contends that the position which it adopted should not be construed as any form of concession, but merely as an opportunity to obtain time within which it can undertake a review of the relevant legislation. However, this submission ignores the objective facts. In the context of an imminent State election, solicitors for the Party threatened the City with proceedings unless specific undertakings were given. The City refused to give those undertakings and maintained the validity of its local laws and threatened to enforce those laws. However, after the Party commenced proceedings, the City reversed its position and proffered undertakings which achieved the Party's objectives.
Next, the City argues that the interlocutory application should not have been brought. However, an election was imminent and the City had unequivocally threatened to enforce its local laws. In my view, it is clear that the Party acted reasonably in seeking the interlocutory relief which it sought.
For these reasons, none of the contentions advanced by the City in opposition to the application of the general principles which govern the exercise of the discretion with respect to costs in circumstances such as this should be accepted. Accordingly, the application of those principles leads to the conclusion that the City should be ordered to pay the Party's costs of the proceedings, including the Party's costs of the application for interlocutory injunctive relief, and of the issue with respect to costs, to be taxed if not agreed, and there will be orders in those terms.
2
7
1