Trist v Glenelg Shire Council (No 2)
[2023] VSC 254
•16 May 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 01830
| SONIA TRIST & ORS (according to the attached schedule) | Plaintiffs |
| v | |
| GLENELG SHIRE COUNCIL & ANOR (according to the attached schedule) | Defendants |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 16 May 2023 |
CASE MAY BE CITED AS: | Trist v Glenelg Shire Council (No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 254 |
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COSTS – Judicial review – Where the plaintiff succeeded on one issue and failed on another – Whether to apportion the plaintiff’s costs - Where one of two defendants presented the successful argument and adopted the unsuccessful argument of the other defendant – Where defendant had an interest in both issues – Whether to order both defendants to pay costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J Fetter | DST Legal |
| For the First Defendant | Mr O Ciolek | Russell Kennedy Lawyers |
| For the Second Defendant | Ms F Batten | MinterEllison |
HIS HONOUR:
A. Introduction
The plaintiffs complained to the Glenelg Shire Council (‘the Council’), the first defendant, that noise emitted by Pacific Hydro Portland Wind Farm Pty Ltd (‘Pacific Hydro’), the second defendant, constituted a nuisance. The Council investigated, and resolved that the noise did not constitute a nuisance. The plaintiffs applied to this Court under ord 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) for:
(a) an order quashing the Council’s decision on the grounds of apprehended bias; and in the alternative
(b) an order that the Council provide a statement of reasons for its decision in accordance with s 8 of the Administrative Law Act 1978.
On 22 March 2023, I published reasons in which I expressed my conclusions that:
(a) the Council’s decision was not affected by apprehended bias; but
(b) the Council was obliged to provide a statement of reasons.[1]
[1]Trist v Glenelg Shire Council [2023] VSC 128.
There was then a dispute as to the costs of the proceeding. The plaintiffs sought a costs order against both defendants. The Council submitted that the plaintiffs should recover only half their costs because the plaintiffs had succeeded on one issue and failed on the other and that both defendants should be liable for those costs. Pacific Hydro submitted that the plaintiffs should pay Pacific Hydro its costs of the proceeding because the plaintiffs had failed to establish that the Council’s decision was affected by apprehended bias and that was the only issue on which Pacific Hydro had acted as the contradictor.
B. The roles that the parties played in the litigation
In a submission filed before trial, the Council contended that the Court had no power to make an order under the Administrative Law Act 1978. That part of the plaintiffs’ claim turned on the discrete legal issue as to whether the Council’s resolution operated in law to determine a question affecting the rights of the plaintiffs.[2] The Council also set out some legal principles that applied to the issue of apprehended bias but did not otherwise address that issue. At the hearing, the Council developed the arguments under the Administrative Law Act 1978 but did not make any further submissions on the issue of apprehended bias.
[2]See Trist v Glenelg Shire Council [2023] VSC 128, Part D.
Pacific Hydro contended that because no relief was sought ‘against’ it and the outcome would not ‘affect Pacific Hydro’s interests’ it was ‘not a proper or necessary party to the proceeding’ and that the ’proceeding against it should be discontinued’. I disagree that it was not a proper or necessary party. Pacific Hydro was properly named as a defendant to the proceeding because it had ‘an interest to oppose the claim’ of the plaintiffs.[3] It had this interest because the plaintiffs were seeking to have quashed a decision, made following a process in which Pacific Hydro actively participated, that Pacific Hydro was not guilty of the tort of nuisance. The plaintiffs acted appropriately by naming both defendants in its originating motion. Pacific Hydro was a natural contradictor to both arguments. That is not to say, however, that Pacific Hydro was obliged to participate in the proceeding. It would have been open to Pacific Hydro not to participate and simply to abide the decision of the Court. That, however, is not what it did. In a submission filed before trial, albeit somewhat begrudgingly, it expanded on the principles that applied to the issue of apprehended bias and contended that the Court should find that there was no apprehended bias in this case. It developed those submissions further in oral argument. It otherwise adopted the submissions the Council had made on the application of the Administrative Law Act 1978.
[3]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 56.01(2)(a).
Pacific Hydro also submitted that the plaintiffs had ‘required’ it to act as contradictor, but, on analysis, that is not accurate. The plaintiffs commenced a proceeding and properly included Pacific Hydro as a defendant. It became apparent that the Council was not going to submit that there was no apprehended bias because the Council thought that to do so would conflict with principles considered in R v Australian Broadcasting Tribunal, ex parte Hardiman.[4] Pacific Hydro then had a choice: it could argue against the plaintiffs’ position or leave that position uncontested. It chose the former. It was free to do so, but it did so because, it may be inferred, it thought doing so was in its own interest. As noted above, it was a natural contradictor of both arguments.
C. What order as to costs should be made?
[4](1980) 144 CLR 13.
None of the above should obscure the facts that:
(a) The plaintiffs failed and Pacific Hydro succeeded on the issue on which Pacific Hydro presented argument, that is, the issue of apprehended bias;
(b) The plaintiffs succeeded and the Council failed on the issue on which the Council presented argument, that is, the application of the Administrative Law Act 1978; and
(c) The two issues were conceptually distinct.
The plaintiffs succeeded in part of their claim and so are entitled to some costs. I reject their submission, though, that there should be no reduction in their recoverable costs due to the fact that they lost one argument. As noted above, the plaintiffs maintained two discrete and substantial arguments directed at different relief, one of which failed.[5] Although both arguments were complex, at least half the court time, and well over half the documents, related to the issue on which the plaintiffs lost. An apportionment is appropriate.
[5]Cf McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250, 290 [153], 291 [156] (Warren CJ, Nettle and Redlich JJA); Chen v Chan (No 2) [2009] VSCA 233, [10] (Maxwell P, Redlich JA and Forrest AJA).
Both defendants stood to benefit from success in both arguments. If the plaintiffs had succeeded in establishing that the Council’s decision was affected by apprehended bias, the Council would have had to make another decision and Pacific Hydro would have lost the benefit of the Council’s decision that its windfarms were not causing a nuisance. Equally, the plaintiffs sought further reasons so that they could ascertain whether there was a reviewable error in the Council’s decision that they could rely on to set that decision aside, and so, for the same reason, it was in the interests of Pacific Hydro as well as the Council that the plaintiffs not be given that opportunity.
By circumstance rather than agreement, it seems, the defendants presented one argument each. The plaintiffs should not be disadvantaged because of the manner in which the defendants divided up the defence of the action between them. If the defendants, as parties with the same ultimate interests, had ‘joined forces’, then there would have been just one set of legal costs incurred in presenting the arguments against the plaintiffs. In those circumstances, and mindful that where possible it is preferable to make an apportionment rather than to make orders that could result in a complex and expensive issues-based taxation,[6] the appropriate order, doing practical justice between the parties, would have been to order the defendants jointly to pay half of the plaintiffs’ costs. That apportionment takes into account the fact the plaintiffs should be allowed some of the costs that were common to both arguments, but that some allowance should be made, against those costs, for the non-common costs of the defendants of the argument on which the plaintiffs failed.
[6]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.04.
Although there is a superficial attraction to Pacific Hydro’s submission that it should not be liable to pay any costs to the plaintiffs and indeed that plaintiffs should pay its costs because it succeeded on the issue on which it presented argument, that position fails to take into account that Pacific Hydro stood to benefit from the Council’s argument presented on the Administrative Law Act 1978 and indeed that it adopted the Council’s submissions.
In the unusual circumstances of this case, I consider that the appropriate order to make, doing substantial justice between the parties, remains an order that the defendants together pay half of the plaintiffs’ costs. There is no reason to make the costs payable other than on the standard basis.
The plaintiffs also contended that Pacific Hydro should be ordered to pay costs because it had failed to comply with its obligations under the Civil Procedure Act 2010 by failing to comply with its obligation to use reasonable endeavours to resolve the dispute. They have filed an affidavit that produces correspondence in which Pacific Hydro declined to participate in settlement discussions. I am not persuaded by this. It is difficult to see how Pacific Hydro’s actions in that way prevented the proceeding from resolving. Pacific Hydro neither made the decision under review nor wrote the letter that was said to give rise to the apprehended bias. Much more would be required before I would consider ordering Pacific Hydro to pay the costs of the proceeding on the basis that it had breached the Civil Procedure Act 2010.
D. Orders
The plaintiffs sought an order that the Council provide its statement of reasons within 60 days. The Council did not oppose that time frame being ordered.
I will make the following orders:
(a) Pursuant to s 8(4) of the Administrative Law Act 1978, within 60 days of the making of this order the First Defendant shall furnish the Plaintiffs with a statement of its reasons for its decision of 22 March 2022 in relation to the Plaintiffs’ allegations of nuisance.
(b) The defendants pay 50% of the plaintiffs’ costs to be taxed in default of agreement on the standard basis.
(c) The proceeding otherwise be dismissed.
SCHEDULE OF PARTIES
S ECI 2022 01830
| SONIA TRIST | First Plaintiff |
| CRISPIN TRIST | Second Plaintiff |
| MELISSA WARE | Third Plaintiff |
| JOANNE KERMOND | Fourth Plaintiff |
| BRIAN KERMOND | Fifth Plaintiff |
| JAMES KERMOND | Sixth Plaintiff |
| BRADLEY KERMOND | Seventh Plaintiff |
| - and - | |
| GLENELG SHIRE COUNCIL | First Defendant |
| PACIFIC HYDRO PORTLAND WIND FARM PTY LTD | Second Defendant |
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