On 9 February 2022, I delivered judgment in these Class 4 judicial review proceedings dismissing the applicant's summons and reserving costs: Bowers v Northern Beaches Council [2022] NSWLEC 8 ('primary judgment'). I adopt the background facts, findings and definitions in the primary judgment.
This judgment concerns the costs of an application brought by notice of motion filed 24 February 2022, by Mr Bowers, seeking leave to reopen the primary proceedings in circumstances where Mr Bowers withdrew his notice of motion on 12 April 2022, the day the motion was to be heard.
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Background
The notice of motion, in its original filed form, sought the following relief:
"ORDERS SOUGHT
For an order pursuant to rule 36.16(1) that the order and judgment dated 9 February 2022 be varied so as to provide for:
1. For leave to re-open my case.
2. Orders as per summons and points of claim.
3. Alternatively, a stay on the substantive costs order pending appeal to NSWCA.
4. Costs."
The notice of motion seeking leave to reopen the primary proceedings was listed for directions before me on 11 March 2022. On that occasion, Mr Bowers appeared for himself, Ms C Rose, solicitor, appeared for Council and Mr M F Fozzard of counsel, appeared for Grigull Custodian. At that directions hearing, Mr Bowers informed the Court that he no longer sought Order (3) in the notice of motion filed 24 February 2022 and I gave leave for Order (3) to be deleted. I then directed that the matter would proceed by way of Mr Bowers providing any evidence and written submissions in relation to the motion on or before 25 March 2022; each of Council and Grigull Custodian providing any evidence and written submissions in relation to the motion on or before 1 April 2022; and Mr Bowers to provide any evidence or submissions in response to the respondents' evidence or submissions on or before 8 April 2022. It was agreed by the parties that the hearing on the motion (anticipated to be less than one hour in duration) would be conducted in person and thereafter, on 14 March 2022, the motion was set down for hearing on Tuesday, 12 April 2022.
On 28 March 2022, as Mr Bowers had not filed any submissions or evidence in relation to his motion to reopen, the solicitor for Grigull Custodian wrote to Mr Bowers inquiring as to his "intentions" in relation to the notice of motion. No response was received from Mr Bowers.
On 1 April 2022, Grigull Custodian filed short written submissions and on 4 April 2022, Council filed short written submissions in relation to the motion. The respondents' submissions were filed generally in accordance with the orders made on 11 March 2022 in circumstances where Mr Bowers had not provided any submissions or evidence in accordance with Order (1) of the orders made on 11 March 2022.
Very early (3.20am) on 12 April 2022, the day the motion was to be heard, Mr Bowers sent an email to my associate in chambers (and copied to the legal representatives for each of the respondents), which stated:
"Dear Associate
I hereby withdraw my notice of motion filed 24 February 2022.
I have covid symptoms and will not be able to attend the hearing on 12 April 2022.
I am content if His Honour deals with the costs of my motion and the costs of the substantive proceedings in my absence on 12 April 2022 should he wish to proceed that way.
In relation to the costs of my motion there is not a lot I can say but I would note that the allocated hearing time for my motion was only 1 hour on 12 April 2022 and I did not file any evidence.
…
Yours faithfully
James Bowers"
The hearing of the motion proceeded at 10.00am on 12 April 2022 with the legal representatives of the respondents appearing. Although Mr Bowers was provided with telephone connection details to attend the hearing by way of audio link at his discretion, he did not appear.
Ms L F Sims of counsel, appeared for Council and Mr M F Fozzard of counsel, appeared for Grigull Custodian. Each submitted that the motion for leave to reopen should be dismissed with costs and each noted that they had prepared written submissions (and Grigull Custodian had prepared an affidavit filed 1 April 2022) and that it was only shortly before the commencement of the hearing of the motion that notice had been received of Mr Bowers' withdrawal of his motion and that, given the background to the proceedings and the conduct of the substantive hearing, each had chosen to provide written submissions even though Mr Bowers had not provided submissions or evidence in accordance with the Court's orders. Each also submitted that, in any event, Mr Bowers had failed to identify any grounds upon which he sought leave to reopen the primary proceedings.
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Legal Principles
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.
The general rule, including where there is an interlocutory application, is that costs follow the event, as set out in rr 42.1 and 42.7 of the Uniform Civil Procedures Rules 2005 (NSW) ('UCPR') as follows:
42.1 General rule that costs follow the event
Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.
42.7 Interlocutory applications and reserved costs
(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including -
(a) costs that are reserved, and
(b) costs in respect of any such application or step in respect of which no order as to costs is made,
are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.
(2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.
I also note in passing, albeit in relation to r 42.20 of the UCPR, Brereton JA's comments (with Meagher JA agreeing) in Nadilo v Eagleton [2021] NSWCA 232; (2022) 250 LGERA 89 at [6], that:
"[t]he power to award costs is an important aspect of rendering justice between litigants. Underlying the general rule that costs follow the event, and the qualifications to it, is the idea that costs should be borne in a way that is fair, having regard to the responsibility of each party for the incurring by the other of the costs. The general rule reflects the notion that justice to a successful party is not achieved if it comes at the price of being substantially out-of-pocket, so that a party who is responsible for litigation should bear its costs. …"
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Consideration
I consider that in the circumstances it is appropriate that costs be awarded against Mr Bowers in relation to the notice of motion filed 24 February 2022. Mr Bowers did not prepare any submissions in accordance with the orders earlier made, did not attend for the hearing of the motion - for reasons I assume related to his concern regarding "covid symptoms", and it was not until the day of the hearing of the motion that he sought to "withdraw" his notice of motion to reopen the primary proceedings.
While I consider that it was not inappropriate nor unreasonable for Council and Grigull Custodian each to prepare submissions in accordance with the Court's orders, in all the circumstances, and not without some concern, but conscious of the background to the proceedings, I consider it is not fair and reasonable that Mr Bowers be ordered to pay the costs of both respondents given that there does appear to be a community of interest between the respondents on the primary point of the motion seeking leave to reopen the primary proceedings. I consider that one half of each of the respondents' costs should be paid by Mr Bowers and I note for the record, that the parties had earlier indicated to the Court that the hearing of the motion (presumably on the basis that written submissions had been directed) would be anticipated to be less than one hour.
Although not determinative in my decision, I also note that even absent discrete grounds articulated (or any evidence raised) by Mr Bowers for seeking leave to reopen, on my understanding of the authorities, given that the primary judgment had been handed down on 9 February 2022 and the motion to reopen the primary proceedings was not filed until 24 February 2022, I consider that the prospects of success in the motion would have been, on the matters presently before me, extremely limited, and this was likely to also have been the understanding of each of the respondents.
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Orders
The orders of the Court are:
1. The notice of motion filed 24 February 2022 is dismissed.
2. The applicant, James Bowers, is to pay:
1. 50% of Northern Beaches Council's costs of the notice of motion filed 24 February 2022; and
2. 50% of Grigull Custodian Pty Ltd's costs of the notice of motion filed 24 February 2022.
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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 April 2022