Boensch v Parramatta City Council

Background

1. The factual background to this motion is relatively uncontentious. Mr Boensch operates a classic car repair and restoration business in Rydalmere within the Parramatta Local Government Area.
2. On 22 January 2022, Council provided to Mr Boensch a "Notice of Intention" to issue an order pursuant to s 124 of the LG Act ('Notice') in relation to vehicles illegally parked by Mr Boensch on Council land.
3. On 5 February 2021, Mr Boensch wrote to Council asking it to extend the time provided before which any orders pursuant to s 124 of the LG Act were made to "at least" 1 March 2021, to allow Mr Boensch to consider the issues raised by Council, obtain legal advice and respond.
4. On 17 February 2021, Council issued an order under s 124 of the LG Act requiring Mr Boensch to remove two vehicles from Council land opposite 27 Crowgey Street and one vehicle from Council land opposite 255 Victoria Road in Rydalmere ('Order'). The Order was attached to a letter in which Council refused Mr Boensch's request for further time and stated, in response to Mr Boensch's various representations in his letter of 5 February 2021, that Council was the appropriate regulatory authority in relation to the land upon which the vehicles sat; that its officers are authorised to enforce the LG Act; that there is no condition of any development consent permitting the parking of the vehicles on any public roads (as Mr Boensch had contended); and that Council was not "targeting" the occupants of 255 Victoria Road. The letter also noted that Council would provide further time for Mr Boensch to comply with the Order if he gave a commitment that he would cease to place vehicles/items associated with his business within the public domain.
5. The Order, which reflects "Order 27" within s 124 of the LG Act, relevantly provides as follows: "1. To remove all objects outlined below and belonging to you from Council land. 2. To prevent any object or matter, including but not limited to those objects outlined in this notice, being deposited in or on any public place within the Parramatta Local Government Area."
6. Thereafter, the Order identifies three specific vehicles each by its registration and photograph and further provides as follows: "This order is given to you as the person causing the obstruction or encroachment for the reasons that the objects described in Point 1: (a) Is causing or is likely to cause an obstruction or encroachment of or on the public place and the obstruction or encroachment is not authorised by or under any Act, and (b) Is causing or is likely to cause danger, annoyance or inconvenience to the public You are required to comply with the terms of this order with[in] 28 days from the date herein."
7. On 26 March 2021, Mr Boensch commenced these proceedings and the matter thereafter came before the Court for directions and case management on a number of occasions including: the first return date on 27 April 2021, when Mr Boensch did not appear and the proceedings were adjourned; on 14 May 2021, when Mr Boensch requested an adjournment to consider whether to proceed with the application; and on 28 May 2021, when Mr Boensch indicated to the Court he wished to discontinue the proceedings.
8. On 9 June 2021, Council advised Mr Boensch in writing that the Order had been revoked and Council's solicitors provided a draft notice of discontinuance to Mr Boensch for signing and filing. Mr Boensch responded with an amended draft notice of discontinuance including an order that Council pay his costs.
9. On 11 June 2021, the parties appeared before the Registrar, who informed Mr Boensch that if he sought costs against Council, he would need to file a notice of motion.
10. On 15 June 2021, Council's solicitors provided a further draft notice of discontinuance to Mr Boensch for signing and filing which omitted any order for costs.
11. Between 12 April and 9 August 2021, the parties were involved in separate Class 4 (judicial review) proceedings in this Court. On 9 August 2021, Duggan J handed down an ex tempore judgment in relation to costs in those proceedings, the relevant details of which I will address later in this judgment.
12. On 14 July 2021, Mr Boensch filed a notice of motion seeking an order that Council "…pay the Plaintiff the costs and preparations of the proceedings" in relation to the Order issued against him.
13. The notice of motion came before the Court on three occasions prior to being heard including, 4 February 2022, when Mr Boensch did not appear (after which Council's solicitors provided a further draft notice of discontinuance to Mr Boensch); 16 February 2022, when there was no appearance of Mr Boensch; and 23 February 2022, when directions were made for the filing and service of evidence for the hearing of the notice of motion. As noted later in this judgment, Mr Boensch provides reasons for his non-attendance(s).

Proceedings before the Registrar

1. On 4 March 2022, the notice of motion was heard and dismissed by the Registrar. Mr Boensch appeared without legal representation, and Mr Campbell, solicitor, appeared for Council.
2. Mr Boensch read his affidavit sworn 24 February 2022, and Council read the affidavit of Christopher John Campbell, its solicitor, affirmed 2 March 2022. The Registrar also received written submissions dated 10 June 2022 from Mr Boensch and heard oral submissions from each party. Given the nature of the motion presently before the Court, an understanding of the hearing before the Registrar is apposite.
3. In summary, Mr Boensch submitted, first, that it was unreasonable for Council to make the Order where it lacked a legal basis to make the Order (where parking vehicles on public roads is governed and permitted under the Roads Act 1993 (NSW), such that an order in accordance with "Order 27", under s 124 of the LG Act, could not be made); and, second, that Council acted unreasonably in rejecting Mr Boensch's request for further time to seek legal advice in relation to the proposed order (and that if he had been granted further time, there would not have been a need to commence the proceedings). Mr Boensch submitted that Council acted unreasonably in relation to its consideration of his representations (in his letter of 5 February 2021) in response to the Notice to issue an order, and that the Order was "avoidable".
4. Mr Boensch also submitted that he seeks his costs of the proceedings in the same manner as he was awarded costs by Duggan J on 9 August 2021 where Council had withdrawn an order two weeks before the hearing was to commence. He submitted that Mr Campbell's affidavit wrongly implies that he delayed the proceedings in circumstances where the parties could not agree on the issue of costs; where he had, on 2 February 2022, asked the Registry to change the 4 February 2022 listing because he was occupied in a Federal Circuit Court hearing that day; where he subsequently fell ill with COVID-19 on 4 February 2022; and where he had not had communication with Mr Campbell as to the new 16 February 2022 listing. In those circumstances, he submitted that there was no delay of which he was in control of and there was no reason for the Court to deny his costs of the proceedings.
5. Council submitted that the Court would not award costs for the following reasons. First, because Council has not acted unreasonably either leading up to or during the proceedings, particularly where there has been no ruling on the legality of the Order, and it was within Council's rights in accordance with its statutory obligations to reject Mr Boensch's request for extra time to seek legal advice. Second, because Mr Boensch chose to enter the no cost jurisdiction of Class 2 proceedings, having appeared before the Registrar on 14 May 2021 being unsure whether to bring Class 2 or Class 4 proceedings, took time to consider what course of action to take, and on 28 May 2021, told the Court that he was going to discontinue these proceedings. Third, because Council revoked the Order at an early stage in the proceedings and where prior to its revocation the Court was informed by Mr Boensch that he intended to discontinue the proceedings and Council acted in good faith by providing Mr Boensch a draft notice of discontinuance to sign and file.
6. Council also submitted that Mr Boensch had brought proceedings out of time where his affidavit revealed that he became aware of the Order on 21 February 2021 and commenced proceedings on 26 March 2021, after the 28-day limitation period.
7. In reply, Mr Boensch submitted that the proceedings were not brought out of time; that he had provided evidence of Council's unreasonable conduct; that the Order was unlawful; and that Council unreasonably refused his request for further time to seek legal advice.
8. The Registrar considered the evidence and submissions and in a succinct ex tempore judgment dismissed the motion having found that there had been no conduct on the behalf of Council that entitled Mr Boensch to have his costs paid.

Evidence

1. Mr Boensch read his affidavit sworn 24 February 2022 and provided written and oral submissions. Council read the affidavit of Christopher John Campbell, its solicitor, affirmed 2 March 2022, and provided oral submissions.

Review of a registrar's decision

1. Section 49.19 of the UCPR concerning reviews of a registrar's decision provides as follows: 49.19 Review of registrar's directions, certificates, orders, decisions and other acts (1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. …
2. The principles governing the exercise of the Court's power to review the Registrar's decision were stated in Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 at [12]-[13] per Preston CJ of LEC, as follows: "[12] What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review, in particular whether it is a decision on practice and procedure or a decision which finally determines or has a decisive impact on a party's rights. In Tomko v Palasty (No 2) [[2007] NSWCA 369] at [8] and [9], Hodgson JA (with whom Ipp JA also agreed) provided guidance as to what might be required for the different types of decisions: '8. In the case of a decision on practice of procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. 9. In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interest of justice require it. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.' [13] Basten JA also noted that policy factors justifying restraint on interference by a reviewing court may have more weight in the case of decisions on practice and procedure than those determinative of legal rights: see at [47]-[48] and [52(4)]."
3. These principles have been consistently applied in Christophers v Roads and Maritime Services [2016] NSWLEC 11 at [3]-[6]; DJ Singh v DH Singh [2017] NSWCA 234 at [60]; DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31 at [24]-[25]; Nola Demuth v Eurobodalla Shire Council [2021] NSWLEC 10 at [4]; Benyon v City of Canada Bay Council [2021] NSWLEC 122 at [36].

Discretion as to costs

1. The power of the Court to make orders as to costs is provided for in s 98(1) of the Civil Procedure Act 2005 (NSW) ('CP Act'), which states: (1) Subject to rules of court and to this or any other Act - (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
2. In Class 2 of the Court's jurisdiction, the presumptive rule within r 3.7 of the Court Rules is that the Court is not to make any order for the payment of costs unless it considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.
3. Rule 3.7 of the Court Rules relevantly provides: 3.7 Costs in certain proceedings (1) This rule applies to the following proceedings (except for appeals under section 56A of the Act) - … (b) all proceedings in Class 2 of the Court's jurisdiction, … (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following - (a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question - (i) in one way was, or was potentially, determinative of the proceedings, and (ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, (b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents - (i) that are required by law to be provided in relation to any application the subject of the proceedings, or (ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, (d) that a party has acted unreasonably in the conduct of the proceedings, (e) that a party has commenced or defended the proceedings for an improper purpose, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where - (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.
4. In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 ('Ex parte Lai Qin') at 624, McHugh J recognised that, in relation to unresolved proceedings, while it will usually be appropriate for the Court to make no order for costs, in some cases where there has been no hearing on the merits, the Court "may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action", although the Court cannot try a hypothetical action. His Honour's comments, while pertinent, related to a class of proceedings where costs would ordinarily follow the event.

Mr Boensch's position

1. Mr Boensch, adopting and expanding his earlier submissions made before the Registrar, submits that it was fair and reasonable for the Registrar to award him costs of the proceedings pursuant to subrr 3.7(3)(c), (d), (e), and (f) of the Court Rules, first, because Council was unreasonable in making the Order (in that it was unlawful); and second, because it was unreasonable for Council to refuse his request to extend the time to obtain legal advice in relation to the Notice before proceedings commenced. Mr Boensch further submits that it was unreasonable for Council not to consider in earnest his earlier objection to the making of the Order; that Council made an Order which was "avoidable"; that Council did not have a reasonable prospect of success; and that Council's revocation of the Order (although in itself a reasonable action) did not avoid or compensate him for costs and out of pocket expenses already incurred.
2. Mr Boensch submits that Council had no legal standing to make the Order pursuant to s 124 of the LG Act in circumstances where the vehicles were legally parked on unrestricted roadside parking and unrestricted parking in road-related areas pursuant to the Roads Act 1993 (NSW) or the Road Transport Act 2013 (NSW).
3. Mr Boensch submits that Council acted unreasonably in circumstances up to the commencement of the proceedings (pursuant to subr 3.7(3)(c) of the Court Rules) in that Council made an erroneous "executive order" which required him to respond with an "appeal", which he submits reflects the factual position in recent Class 4 (judicial review) proceedings where Duggan J made an order that Council pay (some of) his costs.
4. In response to Council's submission (noted later in this judgment) regarding the decision of Commissioner Gray in Boensch v City of Parramatta Council (No 2) [2019] NSWLEC 1381, Mr Boensch submits that Commissioner Gray's decision (where she dismissed an appeal against another order issued by Council to Mr Boensch) is not relevant because the matter concerned Council orders about items "emanating" from Mr Boensch's property, not relating to the parking of motor vehicles as the present matter concerns; and that if the Court takes into account the decision of Commissioner Gray as Council submits, then the Court should also consider the decision of Justice Moore in Boensch v City of Parramatta [2020] NSWLEC 163, being the appeal from Commissioner Gray's decision.
5. Mr Boensch, as far as I can discern, accepts that this Court should not make a decision on the legality of the Order, but submits that it is otherwise important to consider that the Order could not be made to determine whether Council acted unreasonably in issuing an allegedly unlawful Order.

Council's position

1. In relation to Mr Boensch's primary contention, that Council had no power to issue the Order, Council, first, draws the Court's attention to Duggan J's earlier ex tempore decision in Class 4 (judicial review) proceedings; and, second, submits that it is not settled that Council lacked power to make the Order where Commissioner Gray (in Boensch v City of Parramatta Council (No 2) [2019] NSWLEC 1381) found there was a power to issue the order in that matter, and that decision was not overturned on appeal before Moore J (in Boensch v City of Parramatta Council [2020] NSWLEC 163).
2. In relation to Mr Boensch's second contention, that it was unreasonable for Council not to allow Mr Boensch an opportunity to obtain legal advice, Council submits that Barrett JA distinguished between unreasonableness of conduct leading up to the proceedings and unreasonableness of conduct in relation to the proceedings in Community Association DP270253 v Woollahra Municipal Council [2015] NSWCA 80; (2015) 207 LGERA 268 ('Community Association DP270253'), and draws attention to his Honour's comments at [55] regarding the prima facie position in r 3.7 of the Court Rules and an applicant's choice to enter a no costs jurisdiction; and submits that in light of the circumstances where Mr Boensch chose to enter a no costs jurisdiction and indicated that he intended to discontinue the proceedings, it was appropriate and open to the Registrar to dismiss the notice of motion for costs.

Consideration

1. Noting that Mr Boensch does not have legal representation, in considering the parties' positions, I have had regard to the following comments by Kirby P (with Sheller JA agreeing) in Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138 at 2: "Courts such as this, conducting an appeal on the facts by way of rehearing and must be specially vigilant that they perform their functions correctly, including in cases presented by a litigant in person. Concealed in the lay rhetoric and inefficient presentation may be a just case."
2. Although the primary relief sought by Mr Boensch relates to the decision of the Registrar, I consider that, in the light of r 3.7 of the Court Rules which provides matters the Court "might consider" when addressing whether the circumstances are such to render the making of a particular costs order fair and reasonable, the essential question is whether in the present circumstances it is fair and reasonable to make such an order. The Registrar found it was not.
3. Having chosen to bring Class 2 proceedings and thereby enter into an arena to which r 3.7 applied, Mr Boensch cannot (and did not) argue that costs should follow the event and he accepts, as far as I can discern, that he must demonstrate that some aspects of the conduct of Council as a litigant in Class 2 proceedings made it fair and reasonable that the prima facie position prescribed by r 3.7(2) of the Court Rules be replaced by a situation in which Council was required to repay his costs: cf. Community Association DP270253 at [55].
4. The six indicia prescribed by r 3.7(3) of the Court Rules may provide some assistance in evaluating whether a costs order is fair and reasonable, and it is clear that the power to be exercised by the Court is not confined to these matters and instead is in the broadest terms. I refer to the comments of Biscoe J in Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 ('Arden') at [9]: "… All rational considerations are relevant to the formulation of that judgment. In the end, the question is whether, in the opinion of the court, they are of sufficient weight to overcome the presumptive rule. Indicative guidelines for the exercise of the discretion are useful in promoting consistent decisions, but are not entitled to presumptive, let alone determinative, weight. …"
5. The principles applicable to the Court's exercise of the costs power under r 3.7 of the Court Rules are well-known: Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 4) [2017] NSWLEC 116 at [10]-[14]; Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 at [30]; and earlier, Grant v Kiama Municipal Council [2006] NSWLEC 70 at [15].
6. It is apposite to note that the "no discouragement" principle underlies and provides guidance in the application of r 3.7 of the Court Rules. Put simply, a person generally should not be discouraged from making or defending an application by the prospect of an adverse costs order: Arden at [10].
7. Although not determinative in my decision, as requested by the parties, I have read and considered the procedural history of other matters between the parties, including the decision of Commissioner Gray (in Boensch v City of Parramatta Council (No 2) [2019] NSWLEC 1381); Moore J (in Boensch v City of Parramatta Council [2020] NSWLEC 163); and Duggan J (ex tempore in proceedings 2021/00101341).
8. Justice Moore's decision concerned an appeal by Mr Boensch from Commissioner Gray's decision to dismiss his appeal of a similar order issued pursuant to s 124 of the LG Act by Council on the basis that a laneway, the subject of the order, was a public road such that Council did have authority to issue an order with respect to that laneway. I do not consider this decision to be of assistance to either party where it did not address the substantive issue whether the orders were lawful and where the appeal (pursuant to s 56A of the Land and Environment Court Act 1979 (NSW)) was dismissed because Mr Boensch was found (at that time) to be an undischarged bankrupt. As such, I accept Council's submission that there is therefore no determination that Commissioner Gray's decision was incorrect. Further, although again not determinative, I do not accept Mr Boensch's submission that Commissioner Gray's decision can be distinguished from the present circumstances, because that order was also made in accordance with "Order 27" within s 124 of the LG Act and similarly related to objects emanating from property and causing obstruction or encroachment on public space.
9. Justice Duggan's ex tempore decision of 9 August 2021, relied upon by Mr Boensch, related to a situation where two weeks prior to the hearing of Class 4 (judicial review) proceedings commenced by Mr Boensch, Council determined to withdraw an order the subject of those proceedings and her Honour considered it appropriate to take into account that Council had four months since proceedings were commenced to withdraw the order but had declined to do so until very late in the case (where the matter had been fixed for pre-trial mention and final hearing). In those circumstances, her Honour considered it appropriate to exercise her discretion under r 42.1 of the UCPR to award filing and photocopying fees to Mr Boensch (in an amount of $3,313) where he had enjoyed some success due to the withdrawal of that order. Her Honour's decision differs to the present matter in that it occurred in the Court's Class 4 jurisdiction compared to the present Class 2 proceedings where different rules apply, and where in the present proceedings the substantive issues were never set down for hearing.
10. For the reasons that follow, and taking into account the manner in which this Court is empowered to review the decision of a registrar (as noted at [28]-[30] above), the evidence and submissions before the Registrar, the conduct of the earlier hearing, and the detailed material before me, I have formed the view, although not without some hesitation given the matters raised by Mr Boensch, first, that there was no error made by the Registrar or material change in circumstances that would empower a review of the Registrar's decision; and, second (notwithstanding my first finding), that I do not consider that it is fair and reasonable to make an order that Council pay Mr Boensch's (albeit relatively modest) "costs/out of pocket expenses".
11. In relation to Mr Boensch's primary contention, that Council conducted itself unreasonably in making an Order which he alleges to be unlawful, Mr Boensch effectively raises a type of collateral challenge to Council's issuance of the Order. Even accepting that such a challenge may be available within Class 2 or in separate Class 4 proceedings, I am conscious of the principle in Ex parte Lai Qin which cautions against, in a costs hearing, embarking on a hearing of any substantive matter that would otherwise be contested if the matter had proceeded to a fully contested hearing. Noting that the Court did not hear full argument, I do not attempt to adjudicate the issue raised. Moreover, I do not consider that Council's conduct in issuing the Order is conduct (on its own or considered in the light of all the circumstances) which would make it reasonable in the circumstances to award costs where, its lawfulness should not be tried pursuant to the principle in Ex parte Lai Qin. Although Mr Boensch may have enjoyed some success because Council revoked the Order, I do not consider this to be determinative; and, in any event, I am not satisfied that Mr Boensch would have succeeded (in the challenge to the Order) if the matter had been fully tried.
12. In relation to Mr Boensch's second contention, I do not consider that it was unreasonable for Council not to allow Mr Boensch further time to obtain legal advice in circumstances where Council considered, responded to, and addressed Mr Boensch's representations. While allowing additional time may have been an appropriate response (and may have resulted in Mr Boensch ultimately not commencing the proceedings), the failure to allow further time on its own, or, again, combined with the other matters of concern raised by Mr Boensch (summarised at [35] above), does not amount to conduct which I consider would lead to it being reasonable in the circumstances, particularly Council's concerns in relation to the location of the vehicles the subject of the Order, to award costs. Furthermore, I am not satisfied that any of the conduct that Mr Boensch further alleges (at [35] above) could enable me to find that Council conducted itself unreasonably leading up to, or in relation to, the proceedings.
13. I note Council's submission (at [24] above) before the Registrar, which was not pressed before me, that Mr Boensch has brought the proceedings out of time. Although it does prima facie appear that Mr Boensch would have required leave to commence the proceedings out of time, I do not consider it necessary to address that issue where it has not been fully argued by the parties and where the proceedings are in effect concluded.
14. In relation to costs of the present motion, although there may be different approaches, I consider that r 3.7 of the Court Rules, as it is drafted, continues to apply to the notice of motion seeking costs which, falls within Class 2 of the Court's jurisdiction. Even if that were not the case, and r 42.1 of the UCPR was enlivened, again taking into account all the circumstances, I would not have found that it was appropriate for costs of the motion to follow the event.

Orders

1. The orders of the Court are: 1. The notice of motion filed 1 April 2022 is dismissed. 2. No order for costs.

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