[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
JUDGMENT
THE COURT: On 21 May 2024, this Court dismissed Mr Boensch's appeal and summons seeking leave to appeal (Boensch v Transport for NSW [2024] NSWCA 119). In circumstances where Mr Boensch did not have any success in relation to either of the issues for determination, and where there was no apparent reason for departing from the general rule that costs follow the event, this Court ordered that he pay the respondents' costs of the proceedings.
Mr Boensch seeks to vary that costs order.
Rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) requires that a notice of motion seeking to set aside or vary a judgment or order of the court under r 36.16(1) be filed within 14 days after the judgment or order is entered. In relation to the present application, that period expired at the end of 4 June 2024.
On 4 June 2024, Mr Boensch emailed the Registry, attaching a notice of motion to vary the costs order, and made an application for the waiver or postponement of the filing fee in respect of that motion. Later on that day, Mr Boensch advised the Court and the other parties by email that he had lodged "an NOM to vary the judgment as to the costs orders". As will be seen, the motion also seeks orders in relation to the underlying proceedings.
On 5 June 2024, and in response to Mr Boensch's email to the Registry, the Court advised the parties that it would treat that email and the draft notice of motion attached to it as an application to vary the costs order, and that it did not need to hear from the respondents in relation to the application. On 14 June 2024, Mr Boensch's motion was filed, together with written submissions. On 17 June 2024, the application to postpone the filing fee was approved. On 20 June 2024, the Registrar directed that the notice of motion be dealt with on the papers.
That notice of motion was filed outside the 14-day period allowed by r 36.16(3A). However, as the foregoing shows, on the last day of that period Mr Boensch gave written notice to the Court and to the other parties that he sought to set aside the costs order, although no motion had been filed and served. In such circumstances, there is authority in this Court supporting the making of an order under s 14 of the Civil Procedure Act 2005 (NSW) dispensing with the requirement under UCPR r 18.2 that a notice of motion be filed and served (State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [23]-[26]; cf Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin (No 2) [2021] NSWCA 98 at [37]-[38]), thereby allowing the motion to be dealt with under r 36.16(3A).
It is not necessary to make such an order because, assuming that there is power to deal with Mr Boensch's application, the circumstances do not justify varying the order that he pay the respondents' costs of the application for leave and of the appeal. Nor do they justify making any of the other orders sought by Mr Boensch.
Those other orders are: (1) an order granting leave to appeal from the costs order made by the primary judge in the Land and Environment Court (LEC) on 28 July 2023, which was that the costs of the underlying proceedings be reserved; (2) an order setting aside that order or varying it to provide either that each party pay his or its own costs of those proceedings or, alternatively, that the "Attorney General's Office take over part of or all [the] costs" in the appeal and primary proceedings on a "public interest" basis; and (3) an order varying the use of the indefinite article "a" instead of the definite article "the" before the word "determination" in [34] and [35] of Meagher JA's reasons for judgment.
Each of these applications should be refused.
As to the third order sought, which is directed to the reasons given for this Court's decision, there is no judgment or order of the court which is sought to be varied. Whilst judges have limited opportunity to vary their own reasons for judgment after they have been delivered, other members of the court do not have power to require (as distinct from an ability to persuade) an individual judge to amend his or her reasons in some particular respect.
As to the application for variation of the costs order made by this Court, Mr Boensch contends by reference to asserted conduct of the respondents - Transport for NSW and the Registrar General for New South Wales - in relation to the events described in some detail in the reasons for judgment at [4]-[14] under the heading "Background", that in various respects the conduct of each "greatly contributed" to the LEC proceedings being initiated and accordingly should be taken into account as "favourable" to him in any costs order. The written submissions in support of this argument appear under the headings "Failures of the Registrar General's Office (RGO)" and "Failures and action of Transport for NSW". None of the matters referred to involves either unreasonable or unjustified conduct by either of these parties in relation to the conduct of the underlying LEC proceedings or the appeal to this Court which might have constituted a proper basis for the making of a different order for the costs of the appeal to this Court.
Mr Boensch also submits that various matters stated in Meagher JA's reasons are favourable to his case and are accordingly to be treated as arguments "lost" by the other parties, principally Transport for NSW. Mr Boensch asserts that considered overall those matters constitute an "improvement of position for the appellant" which "ought to be considered in [his] favour … when making costs orders".
It is not necessary to record separately each of the matters which are the subject of Mr Boensch's submissions. It is sufficient to note that no part of the reasoning referred to in the written submissions decides or purports to decide any issue between the parties other than those formulated at [21] of the reasons, as to which Mr Boensch was unsuccessful.
Accordingly, the position remains that none of the arguments made by Mr Boensch, either in support of the application for leave to appeal or in support of his appeal, was successful. It follows, there being no good reason to depart from the ordinary rule, that Mr Boensch should pay the costs of the respondents of the application for leave to appeal and of the appeal, as the Court ordered.
In relation to the costs of the proceedings in the LEC, Mr Boensch seeks an order which has the effect that each of the parties bear his or its own costs. The primary judge ordered that the costs in that Court be "reserved". Mr Boensch's appeal to this Court did not raise any issue as to the separate costs of the proceedings in the LEC. As his appeal to this Court has been dismissed, the order made by the primary judge remains.
Finally, in circumstances where neither the Attorney General nor the State of New South Wales was a party to the underlying proceedings and the proceedings in this Court, there is no basis for ordering that either one of them bear Mr Boensch's costs or the costs of any other party.
For these reasons, Mr Boensch's application for variations to the costs order made in this Court and for the other costs-related relief should be dismissed.
In accordance with this Court's email of 5 June 2024, the respondent parties have not made written submissions or otherwise responded to this application, which has been dealt with on the papers. In that circumstance, there should be no order as to their costs in relation to this application.
The orders of the Court are:
1. Dismiss the notice of motion filed on 14 June 2024.
2. Make no order as to the costs of the motion.
[3]
Amendments
10 July 2024 - Correct typographical error in [19]
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Decision last updated: 10 July 2024