Briscoe-Hough v Minister for Local Government (No 5)

Category: Costs

Parties: Gregory Briscoe-Hough (Applicant)
Minister for Local Government (First Respondent)
Edward River Council (Second Respondent)

Representation: Counsel:
Self-represented (Applicant)
M Keene (First Respondent)
Submitting Appearance (Second Respondent)
Solicitors:
Self-represented (Applicant)
Corrs Chambers Westgarth (First Respondent)
Kell Moore Lawyers & Conveyancers (Second Respondent)

File Number(s): 2024/00391391

Publication restriction: Nil

JUDGMENT

1. On 28 July 2025, I delivered judgment in Briscoe-Hough v Minister for Local Government (No 3) [2025] NSWLEC 78 (Judicial Review proceeding), in which I ordered that the Applicant’s Summons for judicial review be dismissed.

2. Subsequent to this, the Applicant filed a notice of motion dated 11 August 2025 (S****et A****side M****otion), seeking an order under r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that I amend (in an unspecified way) the order I made in the Judicial Review proceeding, or (alternatively) an order under r 36.16(1) of the UCPR that I “set aside or modify” my judgment. On 15 August 2025, I dismissed the Applicant’s Set Aside Motion: Briscoe-Hough v Minister for Local Government (No 4) [2025] NSWLEC 87.

3. Prior to these judgments, on 26 June 2025, Justice Pain delivered judgment in relation to a review sought by the First Respondent (the Minister) of a decision by the Registrar to not set aside certain categories of documents sought by the Applicant in a notice to produce that had been filed on 25 November 2024. That review was pursuant to r 49.19 of the UCPR. Justice Pain’s judgment is Briscoe-Hough v Minister for Local Government (No 2) [2025] NSWLEC 66 (Review Hearing). In the Review Hearing judgment, her Honour held that the decision of the Registrar should be varied by ordering that categories 1 and 3 of the notice to produce be set aside, as they were not relevant to the issues raised in the Judicial Review proceeding. Her Honour’s review judgment meant that the entirety of the Applicant’s notice to produce was set aside.

4. In relation to the Judicial Review proceeding, the Set Aside Motion, and the Review Hearing, costs were reserved. Pursuant to orders that I made in the Judicial Review proceeding and subsequently in court on 15 August 2025, the Applicant and the Minister have provided me with written submissions as to what costs orders I should make. The Minister seeks an order that the Applicant pay his costs, which would be the usual order in a Class 4 case. The Applicant resists this, and seems to contend that the Judicial Review proceeding is “public interest” litigation: Applicant’s Written Submissions (AWS) at [2]-[7]. Alternatively, he seems to resist a costs order because of “several failures of the Court”, or because of the conduct of the Minister, or both: AWS at [8]-[20]. The Applicant also seems to otherwise resist a costs order because the Judicial Review proceeding was not conducted in the manner he considers it should have been, or because he disagrees with my conclusions: AWS at [21]-[29].

5. For the reasons that follow, the usual rule should apply, and an order should be made that the Applicant pay the Minister’s costs of this proceeding, as agreed or assessed, including the hearings in relation to which costs were reserved.

Statutory provisions and principles

6. The usual order for costs in Class 4 proceedings is that “costs follow the event”: r 42.1 of the UCPR. This would ordinarily require Mr Briscoe-Hough, as the unsuccessful party, to pay costs. However, r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) (LEC Rules) prevails over r 42.1 of the UCPR. It states the following:

4.2 Proceedings brought in the public interest

(1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

…

7. Rule 4.2 involves a two-step process. First, the Court must determine whether Mr Briscoe-Hough brought his proceeding in the public interest, and secondly, if he has done so, whether or not the Court should exercise its discretion to make orders for the payment of costs against the unsuccessful party, which usually means having regard to countervailing considerations: Friends of Gardiner Park Inc v Bayside Council (No 2) [2022] NSWLEC 61 (Preston CJ) at [7]; Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 (‘Caroona’) at [14]-[18].

8. Whether proceedings have been brought in the “public interest” requires “something more” than an assertion by the Applicant that the matter is in the public interest: Caroona at [15]-[17]. As Heerey, Whitlam and North JJ observed in Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 at [13]: “…much litigation has a public interest going beyond the interests of the parties.” On a practical level, the concept is “broad” and “nebulous,” especially in contentious areas of public policy, and thus mere characterisation is insufficient to ground a departure from the ordinary costs order: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [182] and [215] (‘Oshlack’); Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at [14] and [19].

9. The Court has recognized various factors that, when combined with the proceeding’s characterisation as being “brought in the public interest”, justify the departure from the usual costs rule. Preston CJ has identified several considerations for this exercise in Caroona at [60], including relevantly:

“(a) the litigation raises one or more novel issues of general importance: see Arnold ( on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607 at 622, 635; New Zealand Maori Council v Attorney General of New Zealand [1994] 1 AC 466 at 485; Oshlack v Richmond River Shire Council (Stein J) at 246; Oshlack v Richmond River Council (HCA) at [49], [144]; Ruddock v Vadarlis (No 2) at [17], [28], [29]; Plumb v Penrith City Council [2003] NSWLEC 161; (2003) 126 LGERA 109 at [16], [17]; Engadine Area Transport Action Group v Sutherland Shire Council (No 2) at [20], [21]; Save the Ridge Inc v Commonwealth of Australia [2006] FCAFC 51; (2006) 230 ALR 411 at [11]-[12]; Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 at [73]; Lansen v Minister for Environment and Heritage (No 3) [2008] FCA 1367; (2008) 162 LGERA 258 at [34]; Anderson v Minister for Planning (No 2) at [9] and [10]; Minister for Planning v Walker (No 2) at [9]; Sharples v Minister for Local Government (No 2) at [21], [23] upheld in Sharples v Minister for Local Government [2010] NSWCA 36 at [120], [123], [124]; and Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432 at [130]; [and]

(b) the litigation has contributed, in a material way, the proper understanding, development or administration of the law: Oshlack v Richmond River Council (HCA) at [136]; Friends of Hay Street Inc v Hastings Council (1995) 87 LGERA 44 at 47; Plumb v Penrith City Council at [16], [17]; Lansen v Minister for Environment and Heritage (No 3) at [34]; and Wilderness Society Inc v Minister for Environment and Water Resources [2008] FCAFC 19; (2008) 157 LGERA 413 at [7]-[9]. See also R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600; [2005] 4 All ER 1 at [70] (“there is a public interest in the elucidation of public law by the higher courts”) and R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166; [2008] 1 WLR 878; [2008] JPL 1145 at [15] …”

10. In Engadine Area Traffic Action Group Inc v Sutherland Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 Lloyd J (at [15]) identified these considerations as central to a determination of whether a matter is of sufficient public interest as to be relevant to an evaluation of what costs order should be made:

“(a) The public interest served by the litigation: Darlinghurst Residents’ Association v Elaros**sa Investments Pty Ltd (No. 3) (1992) 72 LGRA 214 at 215; Liverpool City Council v Roads and Traffic Authority (No. 2) (1992) 75 LGRA 210.

(b) Whether that interest is confined to a relatively small number of members from the group or association in the immediate vicinity of the development, concerned with their own private amenity; or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant geographic area: Darlinghurst Residents’ Association at 215; Oshlack at 80-81.

(c) Whether the applicant sought to enforce public law obligations: Oshlack at 80 [20].

(d) Whether the prime motivation of the litigation is to uphold the public interest and the rule of law: Oshlack at 80 [20].

(e) Whether the applicant has no pecuniary interest in the outcome of the proceedings: Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 at 246.”

11. The factors listed in both of these decisions are not a “code” or “fixed criteria”; other considerations may be relevant, and failing to answer all factors in a set way will not be determinative: Caroona at [41]; Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 238 LGERA 295 at [83].

12. The Court may further have regard to countervailing considerations that weigh against using the Court’s discretion to depart from the usual order. This analysis looks more closely at the conduct of the Applicant and has also been summarised in Caroona at [61]. The most relevant considerations are extracted below:

“(d) the narrowness of the question of public interest raised, such as only involving a discrete point of interpretation without broad ramifications: Save the Ridge Inc v Commonwealth of Australia at [13]; Drake-Brockman v Minister for Planning (No 2) [2007) NSWLEC 777 at [12]; Kennedy v Director-General of Department of Environment and Conservation (No 2) [2007] NSWLEC 271 at [23], [24]; Corowa v Geographe Point Pty Ltd (No 2) [2007] NSWLEC 272 at [11]; Anderson on behalf of Numbahjing Clan within Bundjalung Nation v Director General of the Department of Environment and Climate Change [2008] NSWLEC 299 at [14]; Anderson v Minister for Planning (No 2) at [30]; Hastings Point Progress Association Inc v Tweed Shire Council (No 3) at [11], [54]; Ku-ring-gai Council v Minister for Planning (No 2) at [32]; and Sharples v Minister for Local Government [2010] NSWCA 36 at [123].

(e) the applicant “unreasonably pursues or persists with points which have no merit” (Oshlack v Richmond River Council at [134] per Kirby J) or issues that were not “eminently arguable”, to use Stein J’s phrase in Darlinghurst Residents’ Association v Elarosa Investments (No 3) (1992) 75 LGERA 214 at 216 and in Oshlack v Richmond River Shire Council at 245: see Drake-Brockman v Minister for Planning (No 2) at [13] and Anderson v Minister for Planning (No 2) at [30]; and

(f) there is disentitling conduct of the applicant, such as impropriety or unreasonableness in the conduct of the litigation: see Trustees for time being of the Biowatch Trust v Registrar, Genetic Resources & Ors [2009] ZACC 14 at [18], [20], [24].”

13. The rationale behind r 4.2 and like provisions is to ensure access to justice is not cost-barred and public interests are represented in courts, especially relating to environmental protection: Caroona at [30]-[36]. However, this must be counterbalanced against the successful party’s reasonable expectation of indemnification against expenses that it was forced to endure: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543.

14. These matters must be borne in mind when approaching an evaluative exercise of discretion such as this.

The usual order for costs should apply

15. Having considered the authorities in the context of this proceeding, in my view there is no proper justification to depart from the usual costs order in this matter.

16. This Judicial Review proceeding turned on four issues (the first three of which are closely related to each other):

(a) the construction of s 438C(2)(b) of the L**ocal Government Act 1993 (NSW) (LG Act); (b) whether the Minister’s Notice of Intention to Issue a Performance Improvement Order (Notice of Intention) was in accordance with that section; (c) whether a subsequently issued Performance Improvement Order (PIO) should not be declared invalid even if the Notice of Intention did not comply with s 438C(2)(b); and (d) whether relief should be granted in any event considering the Council accepted the PIO, and complied with it.

17. The Judicial Review proceeding concerned conventional principles of statutory construction. There were no “novel issues of general importance”: Caroona at [60(a)]. My judgment is unlikely to have the “significant impact and influence” the Applicant asserts it will (AWS at [5]), and at least in part because of the narrowness of the issues for consideration, it is most unlikely to contribute significantly to “the proper understanding, development, or administration of the law”: Caroona at [60(b)] citing Oshlack at [136], among others.

18. There is also no basis for thinking that there might have been broad public interest or support for the Judicial Review proceeding, and no evidence of this. In fact, it is far more likely that there would be limited public interest or support for a case seeking to challenge a Minister’s PIO issued to a Council (relating to councillor conduct matters within meetings) in circumstances where that order has been accepted, and complied with, including through the provision by the Council of compliance reports to the Minister. In fact, in light of the Council’s acceptance of and compliance with the PIO, there is much to be said for the view that the Judicial Review proceeding lacked any real purpose.

19. As to the balance of the Applicant’s submissions (AWS [8]-[29]), there is no aspect of the Minister’s conduct (to the extent there is evidence of it) in the Judicial Review proceeding (including the Set Aside Motion or the Review Hearing) that would disentitle the Minister to an order for payment of his costs. None of the other submissions made cause me to think that anything other than the usual order of costs following the event should apply.

Conclusion on costs

20. For the above reasons, the usual order for costs should be made. The Minister is entitled to an order that the Applicant pay his costs of this proceeding. That includes the Set Aside Motion, which was also dismissed. Further, as the Minister was wholly successful in the review application before Justice Pain, and given that the notice to produce sought documents irrelevant to the Judicial Review proceeding, the Minister is also entitled to an order for costs in respect to the Review Hearing before Justice Pain.

Orders

21. I make the following order:

22. The Applicant is to pay the First Respondent’s costs of this proceeding, as agreed or assessed, including:

(a) the First Respondent’s costs of the Applicant’s Judicial Review Summons hearing, heard on 21 July 2025; (b) the First Respondent’s costs of the Notice of Motion filed by the Applicant on 11 August 2025, and heard on 15 August 2025; and (c) the First Respondent’s costs of the Notice of Motion filed by the First Respondent on 11 June 2025 seeking review of the Registrar’s decision, heard on 25 June 2025.

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