Waterfront Place Pty Ltd (ACN 123 231 390) v Minister for Planning and Ors (according to the attached Schedule) [No 2]

[2019] VSCA 166

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0150

WATERFRONT PLACE PTY LTD (ACN 123 231 390)	Applicant
v
MINISTER FOR PLANNING & ORS (according to the attached Schedule) [No 2]	Respondents

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JUDGES:	MAXWELL P, T FORREST and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 May 2019
DATE OF JUDGMENT:	31 July 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 166
JUDGMENT APPEALED FROM:	[2018] VSC 621 (Garde J)

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PRACTICE AND PROCEDURE – Costs – Application for leave to appeal – Leave to appeal refused – Whether applicant should pay costs of two respondents – Respondents acting at arm’s length during litigation – Applicant ordered to pay costs of both respondents on standard basis – Local Democracy Matters Incorporated v Infrastructure New South Wales [No 2] [2019] NSWCA 118 and Statham v Shephard(No 2) [1974] 23 FLR 244, applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Delany QC with Mr R Watters	Rigby Cooke Lawyers
For the First Respondent	Mr D J Batt QC with Ms R Amamoo	Victorian Government Solicitor’s Office
For the Second Respondent	No appearance
For the Third Respondent	Mr J D Pizer QC with Ms E C V Porter	Minter Ellison

MAXWELL P
T FORREST JA
EMERTON JA:

1. On 28 June 2019, this Court made orders refusing the applicant leave to appeal against the decision of the trial judge in the proceeding below, which concerned the validity of the first respondent’s exercise of his ‘call in’ power in respect of an application for a planning permit.  Both the first respondent (‘Minister’) and the third respondent (‘Ports Corporation’) seek their costs of the appeal on the standard basis. 

1. The applicant accepts that it is appropriate for the Court to make an award of costs against it in this matter, but submits that the costs should be limited to a single set of costs, being the costs of the Minister.  It relies on Local Democracy Matters Incorporated v Infrastructure New South Wales [No 2],[1] where the New South Wales Court of Appeal stated that two sets of defendants’ costs should not be allowed ‘when there is no possible conflict of interest between them in the presentation of their cases’.[2]  That principle had previously been identified and applied by Woodward J in Statham v Shephard(No 2).[3]

   [1][2019] NSWCA 118 (‘Local Democracy Matters’).

   [2]Ibid [20].

   [3][1974] 23 FLR 244, 246 (‘Statham’).

1. The applicant submits that it is not reasonable to require it to bear more than one set of costs in the circumstances of this appeal for the following reasons:

(a) the sole issue in the appeal was a question of statutory interpretation, namely, whether s 44(3) of the Interpretation of Legislation Act 1984 applies to clause 58(3) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998. There was no dispute over the consequences of s 44(3) if it did apply;

(b)               the narrow scope of this issue meant there was no realistic possibility of a conflict of interest between the respondents — either they supported the validity of the Minister’s ‘call in’ or they did not; and

(c)               equally, the nature of the issue — a question of statutory interpretation on appeal — meant that there was limited scope for the respondents to mount different arguments and, as a result, there was a very significant overlap in the substance of the cases advanced by both respondents.

1. The applicant submits that while the Minister, as the decision maker, was a necessary and proper party to the proceeding, it was not necessary for the Ports Corporation to participate in the appeal.  As an objector in the Tribunal proceeding, it elected to participate in the appeal in circumstances where it had no more of an interest in the validity of the exercise of the Minister’s ‘call in’ power than any other objector and where it was aware that the Minister would contest the proceeding and could be expected to brief a suitably qualified legal team to defend the validity of the ‘call in’.

1. The Ports Corporation submits that the proposition in Local DemocracyMatters relied upon by the applicant is subject to three provisos set out in Statham, the second of which arises in ‘circumstances in which, although the defendants were united in their opposition to the plaintiff, their relationship to each other might be such that they would be acting reasonably in remaining at arm’s length during the general course of litigation’.[4] 

   [4]Ibid.

1. The Ports Corporation submits that in the circumstances of this case and more generally, its relationship with the Minister is such that it had to remain at arm’s length during the course of the litigation:  it is a public entity established under the Transport Integration Act 2010 but does not represent the Crown;  its statutory objects and functions are to manage and develop Station Pier and it has announced the Station Pier Redevelopment Project adjacent to the development that was the subject of the Minister’s ‘call in’;  upon exercising his ‘call in’ power, the Minister became the decision maker in relation to a permit application to which the Ports Corporation was an objector, and to which it continues to object. 

1. In these circumstances, so the Ports Corporation submits, the second proviso in Stratham is apposite. 

1. We agree.  The Ports Corporation has an interest in how the applicant’s land is to be developed.  It has its own plans for the development of adjacent land under its management and control.  It had, and continues to have, an interest in the applicant’s permit application, in respect of which the Minister is now the decision maker and to whom the Ports Corporation will be obliged to make submissions on the merits of the permit application.  In the trial division, the Ports Corporation was recognised to be a proper party to the appeal from the Tribunal and no opposition was recorded to an award of costs in its favour. 

1. In addition, we wish to record that we were assisted by the cogent and concise submissions made by Senior Counsel on behalf of the Ports Corporation. Its participation in the proceeding was helpful and did not prolong the hearing unnecessarily.

1. It will be ordered that the applicant pay the costs of the application for leave to appeal of the first respondent and the third respondent on the standard basis. 

SCHEDULE OF PARTIES

WATERFRONT PLACE PTY LTD (ACN 123 231 390)	Applicant
v
MINISTER FOR PLANNING	First Respondent
and
THE PRINCIPAL REGISTRAR, VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second Respondent
and
VICTORIAN PORTS CORPORATION (MELBOURNE)	Third Respondent

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