Tradelink Constructions Pty Ltd v Holroyd City Council

[2005] NSWLEC 292

Land and Environment Court

of New South Wales

CITATION:

Tradelink Constructions Pty Ltd v Holroyd City Council [2005] NSWLEC 292

PARTIES:

APPLICANT
Tradelink Constructions Pty Ltd

RESPONDENT
Holroyd City Council

FILE NUMBER(S):

11288 of 2003

CORAM:

Bignold J

KEY ISSUES:

Practice and Procedure :- Application for costs in concluded proceedings - consent orders in class 1 proceedings - whether finally disposing of proceedings (including question of costs) - interpretation of Court orders in light of Court's practice direction concerning costs application in planning appeals dtermined by a Commissioner.

LEGISLATION CITED:

Land and Environment Court Rules 1996 - Part 15 Rule 4, Part 15 Rule 9(e), Part 10 Rule 7, Part 17 Rule 1

CASES CITED:

Bailey v Marinoff [1971] 125 CLR 529 at 530;
DJL v The Central Authority [2000] 20ICLR226 at 245;
Wollong Pty Limited v Shoalhaven City Council (No 2) (2002) 122 LGERA 178 ;
Ervin Mahrer v Strathfield Council (2002) 123LGERA 24;
Geoform Design Pty Ltd v Randwick City Council (1995) 87 LGERA 140 ;
Raybos Australia Pty Ltd v Tectran Corporation Ltd (1988) 77 ALR 190;
Birrigan Gargle Local Aboriginal Land Council v the Minister (1993) 80 LGERA 389 ;
Roads and Traffic Authority v Palmer (No 2) (2005) NSWCA 140

DATES OF HEARING:

24/04/2005

 
DATE OF JUDGMENT: 

06/03/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms J. Wauchope, solicitor

RESPONDENT
Ms J. Jagot, barrister

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bignold J

3 June 2005

11288 of 2003 Tradelink Constructions Pty Limited v Holroyd City Council

JUDGMENT

Introduction

1 By its Notice of Motion filed 1 April 2005 the Applicant seeks an order that the Respondent’s Notice of Motion filed on 24 February 2005 seeking a costs order against the Applicant in class 1 proceedings be struck out for want of jurisdiction in the Court to entertain the Respondent’s Motion.

2 Both Motions were filed in class 1 proceedings, involving an appeal against the Council’s determination of the Applicant’s development application to carry out a mixed commercial and residential development on land known as Nos 33 to 37 Sherwood Road, Merrylands.

3 These proceedings were heard by Commissioner Hussey on 17 June 2004 and 4 August 2004. On the latter day when the hearing was completed the Commissioner made Orders, by consent, upholding the appeal and granting development consent subject to stipulated conditions.

4 Some short time thereafter there was published the reasons for judgment (see [2004] NSWLEC 465) and there was filed by the Registrar a minute of the Orders that had been made by the Commissioner, signed and sealed by the Registrar in accordance with Part 15 Rule 4 of the Rules of Court. The minute accurately reflects the terms of the Orders made by Commissioner Hussey (as recorded in his published reasons) except that the minute does not record that the Orders had been made by consent. However, nothing turns on this discrepancy.

5 The Orders that were made on 4 August 2004 were in the following terms:

1. The appeal is upheld.

2. Development application 2003/987 lodged with the respondent Council on 10 February 2003 for the erection of a four storey mixed residential and commercial development consisting of ground floor commercial space and twenty one mixed use units at 33 to 37 Sherwood Road is approved subject to conditions 1 to 155 in Annexure A.

3. That the exhibits may be returned except for exhibits 3, 4, 6, 7, 11, 12, C, D and F.

6 It is at once to be noted that these Orders do not contain any reference to costs in the proceedings upon which subject they are entirely silent.

7 The ‘jurisdictional’ question raised by the Applicant’s ‘strike out’ Motion is whether the Court is currently vested with the jurisdiction to entertain the Council’s Motion seeking the making of a costs order in the proceedings and the power to make the costs order sought by the Council in these proceedings.

8 Although the Applicant has advanced a number of grounds in support of its strike out Motion the principal ground for its assertion that there is no jurisdiction for the Court to entertain the Council’s Motion seeking an order for costs is that the proceedings were finally disposed of when the Orders made by Commissioner Hussey on 4 August 2004 were perfected by the action taken by the Registrar of filing a signed and sealed minute of those Orders in accordance with Part 15 Rule 4 of the Rules of Court.

9 In support of this argument the Applicant relies upon the following statement of the relevant common law principle by 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 my 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.”

10 This statement of principle was expressly approved by the High Court of Australia in DJL v The Central Authority [2000] 20ICLR226 at 245, when it was applied to the statutory jurisdiction and powers vested in the Family Court of Australia.

11 There are subsequent decisions of this Court following the DJL case which have held that this Court has no inherent or implied power to review or to re-open a perfected order: see Starray v Sydney City Council [2001] 112 LGERA 438, Wollong Pty Limited v Shoalhaven City Council (No 2) (2002) 122 LGERA 178 and Ervin Mahrer v Strathfield Council (2002) 123LGERA 24.

12 However, as I noted in Ervin Mahrer at 31, the common law principle enunciated in Bailey v Marinoff expressly recognises the possibility of the existence of a source of relevant statutory power displacing or modifying the common law principle and indisputably such a relevant statutory power is conferred upon this Court by Part 15 Rule 9 of the Rules of Court. That Rule specifies six separate bases upon which “the Court may, on terms, set aside or vary an order” including the following (which may conceivably be relevant to the present case):

“(e) if the order does not reflect the intention of the Court”.

13 However, although I have referred to Part 15 Rule 9 (e) as being conceivably relevant to the present case the Council’s response to the Applicant’s strike out Motion is that its Motion seeking the making of a costs order against the Applicant in the proceedings does not involve the setting aside or variation of the Court’s Orders made on 4 August 2004. Rather the basis upon which it seeks the costs order is by way of a supplemental order to be made by the Court in respect of an issue (namely the costs of the proceedings) that was simply not dealt with by the Court’s Orders made on 4 August 2004.

14 In the course of the hearing the Council advanced an alternative basis of jurisdiction or power for the Court to entertain and make the costs order the Council is seeking, namely the availability of the “slip rule” as provided by Part 10 Rule 7 of the Rules of Court to add to the Court Orders made on 4 August 2004 an order reserving any question of costs in the proceedings. This submission relies upon the evidence in the affidavit sworn 20 May 2005 by Donette Holm, the solicitor representing the Council at the hearing of the proceedings on 4 August 2004, which recalls that at that hearing Ms Holm said words to the following effect:

“Commissioner there is one other matter I wish to foreshadow. We will be taking instructions in relation to the issue of costs and expect to lodge a Notice of Motion for costs shortly”.

15 The Commissioner responded by saying words to the effect:

“Noted”

16 It was in the light of the evidence of Ms Jodie Wauchope (the solicitor who represented the Applicant at the hearing on 4 August 2004) in her affidavit in reply to Ms Holm’s affidavit, which states that she does not recall whether Ms Holm “made any comments to the Commissioner regarding costs”, that I granted leave for the parties to tender a relevant transcript of the hearing on 4 August 2004 when it became available.

17 I have now received the relevant transcript extract of the hearing on 4 August 2004 before Commissioner Hussey and it confirms Ms Holm’s evidence. Immediately after being handed the Consent Orders, Commissioner Hussey enquired whether there was anything further from the parties which led to the following exchange:

Ms Holm : There is one further matter that is if we have finished all of the matters in relation to Consent Orders. There is one thing I just wish to foreshadow to the Court and to my friends in relation to the issue of a Costs Application. We are currently seeking confirmation of our instructions from Council, and we will be in the position to take instructions within seven days as to lodgement of a Costs Application.
Commissioner Hussey : Alright, well the record’s noted to that effect.

18 Since it is obvious that the Court Orders do not reflect the effect of that exchange the case appears to me to fall squarely within the ambit of Part 15 Rule 9(e), that I have earlier recited. That power is exercisable in respect of an “order” of the Court, including a perfected final order. The relevant “intention” (which is not reflected in the Court’s Orders) stated most generally, would have been to reserve the question of costs, or stated more particularly would have been to reserve the question of costs raised by the Council’s foreshadowed application. Clearly the Court Orders unintentionally failed to give effect to the relevant intention that the question of costs be reserved.

19 This result opens up the obvious possibility of relief being available pursuant to Part 15 Rule 9(e) and this possibility provides a sufficient reason for the rejection of the Applicant’s “strike out” Motion. In so concluding it is not necessary for me to go further by determining whether the available power should or should not be exercised in the present case for the simple reason that I am adjudicating upon a “strike out” Motion and not upon an application for relief pursuant to Part 15 Rule 9(e). Although what I have said is sufficient to dispose of the Applicant’s Notice of Motion upon a ground that was not fully appreciated by the parties when they argued the case and has only come to light when the transcript of the hearing on 4 August 2004 became available, since other matters of general importance to the Court’s practice in relation to costs in class 1 proceedings that are heard and disposed of by a Commissioner of the Court have been debated, I should express my views on those matters. The matters debated raised the following issues:

(i) whether the Court’s orders finally disposed of the proceedings;
(ii) whether the Court is currently vested with the power to make a costs order in the proceedings.

20 In answering these questions, I proceed upon the basis of the parties’ competing arguments (i.e. independently of the obvious availability of relief pursuant to Part 15 Rule 9(e) that has been appreciated only after the argument was concluded in circumstances where I have not invited additional argument).

Did the Court’s Orders made on 4 August 2004 finally dispose of the proceedings?

21 As a general proposition it may be said that when the Court makes Orders in proceedings finally disposing of all claims etc. arising in the proceedings and those Orders are the subject of the requisite action that is taken by the Registrar pursuant to Part 15 Rule 4 of the Rules of Court, the proceedings thereupon are to be regarded as regularly and finally concluded in the Court.

22 However, whether in a given case the Orders are final Orders disposing of all issues arising in those proceedings depends, not upon general considerations, but upon the effect of the Orders in the particular proceedings. In particular the action taken by the Registrar in accordance with Part 15 Rule 4 of the Rules of Court “perfecting” the Orders does not determine the question whether the Orders have finally disposed of the proceedings in this Court. The questions of the “finality” of the Orders and the ‘dispositive effect” of the Orders are to be determined by reference to the terms of the Orders and the nature of the proceedings and the claims made in the proceedings in which the Orders are made: cf Licul v Corney (1976) 50 ALJR 439.

23 The decision of Talbot J in Wollong Pty Limited v Shoalhaven City Council (No 2) (2002) 122 LGERA 178 illustrates these principles. In that case, involving a claim for compensation in respect of the compulsory acquisition of land under the Land Acquisition (Just Terms Compensation) Act 1991, the Registrar had signed and sealed a Minute of Order in the proceedings in the following terms:

1. The amount of compensation be determined at Five Hundred and Sixty Five Thousand and Seventy Four Dollars ($565,074.00).
2. The question of valuation fees is reserved.
3. The question of costs is reserved.
4. The exhibits be returned.

24 Although it was submitted at 183 that Order 1 was a Final Order of the Court whereas Orders 2 and 3 were interlocutory Orders, Talbot J held at 186 the Court’s Orders were not “Final Orders disposing of the proceedings” because until the reserved question of the ‘valuation fee’ was determined the Court had not completed its adjudication in the proceedings by determining the total amount of compensation that was payable. He also held (at 186) that the action taken by the Registrar in accordance with Part 15 Rule 4 of the Rules of Court had not transformed the Court’s Orders into “a Final Order disposing of the proceedings”.

25 Unlike the Orders made in Wollong, which expressly reserved the question of valuation fees and the question of costs the Orders made in the present case expressly reserved nothing. Accordingly the question that naturally arises is whether it may be legitimately inferred that the Court’s Orders finally disposed of the proceedings including the question of costs in those proceedings.

26 It is at this very point that it becomes necessary to consider the effects of the particular practice and procedure prevailing in this Court in respect of costs in class 1 proceedings that are determined by a Commissioner of the Court, such as occurred in the present case. Relevant current practice and procedure have changed significantly since February 2004, from the former regime that is reflected in the decision of Pearlman CJ in Geoform Design Pty Ltd v Randwick City Council (1995) 87 LGERA 140 where paragraph 10 of the Court’s Practice Direction then provided that:

(i) the practice of the Court was that no order for costs is made in planning or building appeals unless the circumstances are exceptional;

(ii) the delegation to a Commissioner to hear and determine a proceeding excludes from that delegated function any consideration of the question of costs; and

(iii) any application for costs in a proceeding determined by a Commissioner should be made by Notice of Motion filed within 14 days of the publication of the Commissioner’s judgment for decision by a Judge.

27 In that case where the Senior Commissioner had heard a class 1 proceedings and had made consent orders in the proceedings (including a costs order which had been omitted from the signed and sealed minute of order) the Chief Judge made costs orders in the proceedings in respect of a Notice of Motion seeking either an order for costs in the proceedings heard and determined by the Senior Commissioner or alternatively seeking concurrence pursuant to s 69(8) of the Land and Environment Court Act 1979 to the costs order that had been made by the Senior Commissioner. The Chief Judge, having held at 146, that the costs order made by the Senior Commissioner was made “without jurisdiction”, went on to hold at 147 that it was appropriate that she proceed to determine for herself the question of costs and at 152 she concluded that it was “just and reasonable” to make a costs order in the proceedings.

28 The current relevant practice and procedure of the Court is reflected in the current paragraph 10 of the Court’s Practice Direction (which came into force on 2 February 2004). It provides as follows:

Where an application for costs is made in proceedings that have been heard and determined by one or more Commissioners the application shall be made to that Commissioner or those Commissioners (as the case may be). Where the Commissioner or Commissioners are of the opinion that a costs order should be made, the parties shall be informed of that decision and the reasons for it and shall be given the opportunity to make submissions to the Chief Judge on whether he should give concurrence to the proposed costs order. Normally, submissions shall be made in writing and must be made within 14 days of the publication of the reasons for decision by the Commissioner or Commissioners (as the case may be) of the proposed costs order. If any party wishes to make oral submissions in addition to any written submissions, application must be made to the Chief Judge within the 14 day period. If such an application is not made or written submissions are not provided, the Chief Judge shall, without further notice to the parties, decide whether to grant concurrence to the proposed costs order. If the Chief Judge concurs, the order for costs determined by the Commissioner or Commissioners shall be made pursuant to s 69(8) of the Land and Environment Court Act 1979.

29 That practice and procedure operates in respect of the costs power conferred upon the Court by s 69(2) of the Land and Environment Court Act as constrained or controlled by (i) the Rules of Court (Part 16 rule 4) and (ii) by s 69(8) of that Act.

30 The first mentioned constraint or control on the very broad costs power conferred upon the Court by s 69(2) is that Part 16 Rule 4(2) provides that “no order for costs will be made” in the relevant proceedings (which includes the present proceedings) “unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable”. The second mentioned constraint or control is provided by s 69(8), which provides that “a Commissioner may not make an order under this section except with the concurrence of the Chief Judge”.

31 It is clear that the object of the Court’s current practice and procedure is to vest in the Commissioner who has heard and determined the proceeding, the costs power that is vested in the Court, subject to the constraint or control imposed by s 69(8). The Court’s practice and procedure facilitates the exercise of the power and an essential feature of that facilitation is that any application for costs be made after the Commissioner has determined the proceedings.

32 In the light of this particular practice and procedure it is, in my judgment, both legitimate and necessary to imply into orders made by Commissioners in such proceedings “determining such proceedings” a limitation or reservation that such orders have not addressed any question of costs in the proceedings, and that the question of costs be taken to have been necessarily reserved. So to interpret (in deference to the Court’s practice and so as to promote the attainment of its obvious object) Court orders of the type made by Commissioner Hussey in the present case, leaves little or no scope for the commonly adopted interpretation of perfected Court orders that are silent on the question of costs, as is exemplified by the decision of Toohey J in Raybos Australia Pty Ltd v Tectran Corporation Ltd (1988) 77 ALR 190.

33 In that case Toohey J held that where his order dismissing a summons had not included an order for costs in favour of the successful party, it was not too late for a costs order to be made by invoking the “slip rule” in circumstances where the failure of Counsel to ask for costs upon the pronouncement of the order dismissing the summons was an “oversight on the part of Counsel”.

34 That case provides a clear example of the silence on the question of costs in final orders disposing of proceedings, being regarded as a matter that was entirely subsumed by the finality of the orders, (albeit being an oversight in the orders that was capable in that case of being corrected by the application of the slip rule).

35 Similarly in this Court in Birrigan Gargle Local Aboriginal Land Council v the Minister (1993) 80 LGERA 389 Bannon J held that the Court had no jurisdiction to make a costs order in proceedings that had been concluded by the making of consent orders (which had not reserved the question of costs). In passing I note that in the commentary contained in the Law Book Company’s Practice Book on this Court on the “slip rule” as provided by Part 10 Rule 7 in the Rules of Court, the comment is made that this Court in Birrigan Gargle may have had jurisdiction to make a costs orders by virtue of the availability of the slip rule.

36 A more recent illustration of the availability of the slip-rule to potentially empower the Court to make additional costs orders even in the case of perfected final orders (which included a costs order) is provided by the Court of Appeal decision in Roads and Traffic Authority v Palmer (No 2) (2005) NSWCA 140.

37 In that case the Court of Appeal while noting that Part 52A Rule 5 of the Supreme Court Rules “provides that the Court may, in any proceedings, exercise its powers and discretions as to costs at any stage in the proceedings or after the conclusion of the proceedings” held at paragraph 17 that “(T)he rule is relevantly concerned with costs orders after the substantive decision has been given and must be subject to finality from entry of costs orders already made”. In that case the Court of Appeal held that by virtue of the slip rule, although it had the power to entertain an application for the making of different costs orders from the costs orders that had been made in the Court’s perfected original orders, in the exercise of discretion it refused to make the different costs order that had been sought in the proceedings.

38 For all of the foregoing reasons I would interpret the Court’s orders made on 4 August 2004 as impliedly reserving any question of costs in the proceedings.

39 However, if I were mistaken in my interpretation of the Court’s orders and they were properly to be interpreted as final orders which had disposed of the proceedings (including the question of costs in the proceedings) then I would be of the opinion that relief would be potentially available pursuant to the application of the “slip rule”, for the reasons advanced in the cases that I have referred to where the slip rule was invoked to empower the Court to entertain applications for costs orders that either had not been made in the concluded proceedings (Raybos) or were different from the costs orders that had been made in the concluded proceedings (Palmer (No 2)). Again it is not necessary in expressing this opinion that I determine whether the slip rule should be applied in the present case in the exercise of discretion or otherwise. This is because I am adjudicating on the Applicant’s “strike out” Motion and not on the Council’s invocation of the slip rule (since other than referring in the course of argument to the relief potentially so available, the Council has not made any application under the slip rule).

40 Finally I should add the obvious observation that my conclusion that the slip rule is potentially available to empower the Court to entertain the Council’s costs application is based upon the assumption that there is no basis for concluding that relief is available in the present case pursuant to Part 15 Rule 9(e) of the Rules of Court. (That assumption, though possibly correct when the “strike out” Motion was argued must now be regarded as indisputably incorrect in view of the later tender into evidence of the transcript of the hearing on 4 August 2004).

Is the Court currently vested with the power to make a costs order in the proceedings?

41 If my interpretation of the Court’s orders is correct it follows that the question of costs in the proceedings was not determined by the Court’s orders but was, and remains, a reserved question. It would follow (subject to the Applicant’s argument that the Council’s costs motion is filed out of time), that the Court is currently vested with the power to make a costs order.

42 The Council’s argument is founded in Part 17 Rule 1 of the Rules of Court sub rule (1) of which provides as follows:

A person may commence proceedings in relation to an appeal, objection or a reference to the Court at any time within 60 days after the right of appeal, objection or reference first arises.

43 In my judgment this Rule which is directed to filing of originating process has no application to the Council’s costs Motion which is made in pre-existing proceedings.

44 (In passing it is to be noted that the time fixed by Part 17 Rule 1 is capable of being extended pursuant to the power conferred upon by the Court by Part 1 Rule 8 of the Rules of Court).

45 Since there is no relevant time constraint operating in respect of the Council’s costs Motion it follows that Court is currently vested with the power to make a costs order in the proceedings.

46 If contrary to my interpretation of the Court’s orders the proper interpretation of them is that they have finally disposed of the whole of the proceedings (including any question of costs in the proceedings) then for the reasons I have previously given those orders, so interpreted, are capable of being varied by virtue of the availability of the power conferred upon the Court by either Part 15 Rule 9(e) or Part 10 Rule 7, which power if exercised, would vest the Court with the power to make a costs order in the proceedings.

47 Finally there is a further source of power that is potentially available to the Court to empower it to make a costs order in these proceedings, namely the power to make a supplemental order which is available even in the case of a perfected final order. The nature and scope of the power of the Court to make a supplemental order is discussed and illustrated in the decision of the Full Court of the Federal Court of Australia in Caboolture Park Shopping Centre Pty Ltd v White Industries (Queensland) Pty Ltd (1993) 117 ALR 253 at 264/265.

48 For all of the foregoing reasons I am of the opinion that the Court is currently vested (either absolutely or contingently) with the jurisdiction to entertain the Council’s costs Motion and with the power to make a costs order in the proceedings.

49 In amplification of this conclusion the Court is absolutely vested with the requisite jurisdiction and power on two separate bases namely:

(i) if the Court orders made on 4 August 2004 are properly interpreted (as I have interpreted them) as reserving the question of costs in the proceedings; and

(ii) by virtue of the Court’s inherent or implied power to make supplemental orders in the proceeding.

50 If however, I be wrong in so concluding I would be of the further opinion that the Court is contingently vested with the requisite jurisdiction and power by virtue of the availability of the separate powers conferred on it to vary Court Orders by Part 15 Rule 9(e) or Part 10 Rule 7 of the Rules of Court for the reasons I have already given. Should either of these powers be exercised the Court would become absolutely vested with the requisite jurisdiction and power to make a costs order in these proceedings.

CONCLUSIONS AND ORDERS

51 For all the forgoing reasons the Applicant has not substantiated its strike out Motion. Accordingly I order that the Applicant’s Notice of Motion be dismissed with costs.