APPEALED FROM: Howlin v Brinckman; Howlin v Clarence City Council [2009] TASSC 18

Appeal and New Trial - Appeal - General principles - Admission of fresh evidence - Other matters - Appeal heard - Orders made but not perfected - Application to re-open hearing on ground of fresh and new evidence - Documents not produced on request or on subpoena - Whether hearing should be re-opened - Whether documents would have affected the outcome of the proceedings - Whether in the interests of justice to re-open.

Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, applied.

Greater Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435, referred to.

Judgment Number: [2010] TASFC 10

1 That the application filed by the respondents on 11 October 2010 is dismissed.

2 That the respondents pay the council's costs of the appeal to this Court, including the costs of the interlocutory application filed by the respondents on 11 October 2010, and of the application for non- party costs filed on 14 January 2008.

1 The respondents seek to re-open the hearing of an appeal after the Court published its reasons for allowing the appeal and announced its orders, but before the orders have been perfected by filing and sealing.

2 In 2005, the respondents sued Mrs Margaret Brinckman for a declaration that all of Marsh Street, Opossum Bay, was a public highway.

3 The action was heard by Slicer J over four days in March 2007. On 14 August 2007, the judge ordered that there be judgment for the respondents, making the declaration that was sought. See Howlin v Brinckman [2007] TASSC 59. There was no appeal.

4 The respondents sought an order that Mrs Brinckman pay their costs of the action. In December 2007, the judge dismissed the application and ordered that the parties pay their own costs of the action. See Howlin v Brinckman (No 2) [2007] TASSC 100; (2007) 17 Tas R 99. Again, there was no appeal.

5 On 14 January 2008, the appellant council became involved in the action for the first time when the respondents filed an application seeking "an order that the Clarence City Council pay indemnity costs incurred by the plaintiffs [the respondents] of and incidental to the action". The application was heard by the same judge on six dates in August 2008. It was opposed by the council. On 26 March 2009, the judge found partly for the respondents and ordered that the council pay the respondents' taxed costs of the action against Mrs Brinckman from 11 December 2005, the date upon which the council's Mayor was informed by the respondents of the commencement of the action against Mrs Brinckman. See Howlin v Brinckman; Howlin v Clarence City Council [2009] TASSC 18.

6 The council appealed against that order to this Court. The appeal was heard on two dates in November 2009. On 23 April 2010, the Court published its reasons for concluding that the appeal should be allowed, and that there should be an order setting aside the judge's order that the council pay the respondents' costs of the action against Mrs Brinckman from 11 December 2005, and an order dismissing the application of the respondents against the council for costs. See Clarence City Council v Howlin [2010] TASFC 2. The Court ordered accordingly, but the orders were not perfected by the council filing, and the Court sealing, the formal order embodying them.

7 The council applied for an order that the respondents pay its costs of the appeal, together with the costs of the application for costs that was heard by Slicer J. The setting of the hearing date of that application was delayed. Eventually it was fixed for 13 October.

8 Two days earlier, on 11 October, the respondents filed an application by which they sought to re-open the appeal for further evidence and argument. They claimed to have found relevant documents that previously were not available to them and which were material to the appropriate outcome of the appeal. On 13 October, the Court heard the application and also the council's application for costs, and reserved its decision.

9 It is to be noted that the declaration in the respondents' action against Mrs Brinckman, that all of Marsh Street is a public highway, is binding only on the parties to that action, that is, the respondents and Mrs Brinckman. The council is not bound by it. Clarence City Council v Howlin [2010] TASFC 2 at par[104]. If the respondents had sued the council as well as Mrs Brinckman, it would have been bound by the declaration. During the course of the most recent hearing, the Court learned that recently, the council commenced an action against the respondents in which it seeks an order that Marsh Street is not a public highway.

10 It is also to be noted that as expressed in their statement of claim, the respondents based their action against Mrs Brinckman for a declaration that Marsh Street was a public highway on a claim that it had become and remained "a public highway by dedication of the right of passage to the public by the owner of the soil and acceptance, that is, user of that right by the public". At the recent hearing before the Court, the respondents emphasised that was the basis of their action against Mrs Brinckman, referring to it as a case of common law dedication as distinct from a statutory dedication.

11 In connection with that aspect, it has always been the case of the council since it was brought into the proceedings, by the respondents' application against it for the costs of the Brinckman action, that there has been no dedication of the street as a public highway. To the contrary, the council has argued that because the formal requirements of statutes for dedication have not been observed, there could be no dedication, not even a dedication at common law as claimed by the respondents.

12 By way of examples only, an argument of the council has been that from 24 September 1947, when the land became part of a town for the purposes of the Towns Act 1934, until 1 January 1964, Marsh Street could not be constructed, opened or used as a highway intended for the use of the public generally without compliance with the Towns Act, s48. It required a scale plan showing the new street, its width and direction, and the proposed provision for its drainage, to be submitted to, and approved by, the council. It was the council's case that during that time, a dedication pursuant to merely common law principles, that is, one based on usage, was not possible without compliance with those formalities.

13 Similarly, it has been the appellant's case that from the commencement of the Local Government (Highways) Act 1982, s7, on 1 September 1983, until the present day, it has not been possible for there to be a common law dedication of the land as a highway other than in accordance with formalities required by the section, including approval of the dedication by the council under its corporate seal. No such formalities have taken place. It follows from that, it has been argued, that findings of Slicer J, such as that mail delivery to Marsh Street commenced in 2000, rubbish removal in 2001, and street lighting in 1987, could not have tipped the scales in favour of a common law dedication, as his Honour determined, because there was no compliance with the requirements of s7. All of those events occurred after 1 September 1983.

14 It is necessary to refer, in summary, to this Court's reasons for deciding that the council's appeal against what I will refer to as the non-party costs order should succeed. There were two major steps in the Court's reasons. The first step was that the learned judge erred by failing to disqualify himself from hearing the respondents' application for costs because of apprehended bias. The Court's conclusion about that was stated in par[114] of my reasons:

"Notwithstanding the undoubted merit in the respondents' submission that an application for costs against a non-party should ordinarily be decided by the trial judge, I find this to be an exceptional case because of the extent to which his Honour was to be faced with having to judge the correctness of so much of what he had judged before. The hearing was not to be a mere adjunct to the trial of the action. To a substantial extent a rehearing of issues was required, and a fair minded lay observer would have had sound bases for a reasonable apprehension that the learned judge might not bring an impartial mind to the resolution of the questions he was required to decide. The issues of fact and value judgments together with issues of law that had to be reconsidered were considerable, in substance and number, and required the attention of a judicial officer who was unfettered by the findings and determinations he had made before."

15 The second step in the Court's reasons involved the exercise of its own discretion concerning whether the order for costs in the respondents' favour should have been made against the council. The Court decided that it should not have been made.

16 At par[125] I referred to the following matters of principle that may be extracted from Symphony Group Plc v Hodgson [1994] QB 179, [1993] 3 All ER 143:

"Courts have made orders for costs against a non-party where the non-party had some management of the action, or maintained or financed the action, or caused the action, or where the non-party was a party to a closely related action which had been heard at the same time but not consolidated. The categories of cases in which such orders may be made are neither rigid nor closed. The discretion to award costs is a very wide one and there are no immutable rules. Material considerations to be taken into account include, but are not limited to:

•

an order for the payment of costs by a non-party will always be exceptional and the judge should treat any application for such an order with considerable caution;

•

it will be even more exceptional for an order for the payment of costs to be made against a non-party where the applicant has a cause of action against the non-party and could have joined him as a party to the original proceedings;

•

even if the applicant can provide a good reason for not joining the non-party against whom he has a valid cause of action, he should warn the non-party at the earliest opportunity of the possibility that he may seek to apply for costs against him;

•

the judge should be alert to the possibility that an application against a non-party is motivated by resentment of an inability to obtain an effective order for costs."

17 At par[126], I pointed out that the respondents could have joined the appellant as a party to the action against Mrs Brinckman, but did not do so, and at no time did they warn the council that they might seek an order for costs against it.

18 At par[127], I pointed out that the respondents had sought positively to discourage the council from seeking to be joined in the Brinckman action or to be heard in it. On 24 October 2005, in a letter sent by them to the council's manager, they advised that they had instructed a solicitor to issue the writ against Mrs Brinckman only and stressed that they regarded the issue concerning Marsh Street to be a private one between them and Mrs Brinckman. On 2 June 2006, six months after the issue of the writ against Mrs Brinckman, and nearly 10 months before the trial of the action, the first respondent, in a letter to the council's manager on behalf of both respondents, categorically stated that the writ had not been served on the council and that the action was a private one against Mrs Brinckman and not the responsibility of the council. As I observed in my reasons for judgment, in those ways the respondents made it clear that they did not want the council to intervene and I held that having regard to the correspondence, the making of the order against the council was inappropriate and should not have been made. The other members of the Court agreed with my conclusions and reasons.

19 In the balance of my reasons I referred to some conclusions of the learned judge and some arguments advanced by the respondents. At par[140] I referred to the test the learned judge applied "of connection and capacity to initiate or control the processes of resolution or outcome of the matter giving rise to the litigation" and stated my conclusion that even if that was the test that applied, the basis for the order did not appear. I found that the council did not have the capacity to resolve the issues concerning Marsh Street, that the respondents and Mrs Brinckman were intractable and compromise between them was impossible, and that determination by a court became the only feasible outcome.

20 The council does not challenge the power of the Court to re-open the hearing of the appeal, receive further evidence and submissions, and re-determine its outcome.

21 Many cases have dealt with the principles that apply when a party appeals from the outcome of a trial and, relying on fresh evidence discovered since the trial, seeks an order for a new trial. This is not such a case, for what the respondents are seeking is to have the hearing of the appeal re-opened by the Court before its orders have been perfected. Nevertheless, similar principles should apply. The parties do not dispute that.

22 In Greater Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435 at 444, Dixon CJ, with whom the other members of the High Court agreed, stated the general rule:

"If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial."

23 That is the general rule for the ordinary case where the unsuccessful party becomes aware of evidence after trial. However, it was pointed out by the High Court in Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140 - 141, that the general rule is not directed to a case where the trial itself miscarried because of "surprise, malpractice or fraud". The court said that such cases cannot properly be seen as mere cases of "fresh evidence", nor can a case where the material constituting the fresh evidence was unknown to the unsuccessful party by reason of misconduct on the part of the successful party, such as an admitted failure to comply with the requirements of the trial court's order for discovery of documents. The court said that a case of failure to comply with a discovery order could come within the category of "cases of malpractice", particularly where the failure was deliberate or remained unexplained, and could be a stronger case than the category of "cases of surprise", both of which categories were expressly exempted from the statement of the general rule in Greater Wollongong Corporation v Cowan.

24 At 142 - 143, the court in Quade made the following statements of principle for a case of misconduct on the part of the successful party resulting in relevant evidence being undisclosed until after the verdict:

"It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict. The most that can be said is that the answer to that question in such a case must depend upon the appellate court's assessment of what will best serve the interests of justice, 'either particularly in relation to the parties or generally in relation to the administration of justice'. See Orr v Holmes (1948) 76 CLR, at p 640. In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party cf Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985), 2 NSWLR 340, at p 357, any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available. While it is not necessary that the appellate court be persuaded in such a case that it is 'almost certain' or 'reasonably clear' that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so."

The documents upon which the respondents seek to rely for the re-opening of the appeal

25 The respondents wish to rely on documents they have placed in four categories.

26 The first category contains documents they say were unknown to them and were not before Slicer J or this Court at previous hearings. They say that in the past, the council produced documents under the Freedom of Information Act 1991, and advised them that if they required other documents they would need to subpoena the council. Subpoenas were issued for hearings before Slicer J but the new documents were not among those produced.

27 However, during the course of argument, Mr Howlin conceded that two of the documents they particularly relied on were produced by the council under a subpoena two days before the hearing of the Brinckman action. Without merit, he argued that although the respondents' counsel was aware of them, the respondents had not personally seen them. On that basis, the documents do not qualify as fresh evidence.

28 The respondents assert that the new documents only became accessible to them and other members of the public upon the commencement of the Right to Information Act 2009, which commenced on 1 July 2010, and which repealed the Freedom of Information Act. They obtained most of them from the Department of Infrastructure, Energy and Resources. They claim that some of them evidence that in some of the years between 1967 and 1990 Marsh Street was on the council's list of rural roads, or on the Department of Main Roads' list or maps of rural roads, and that the council had maintained it and had received an annual maintenance payment for its work.

29 Also among the documents is a map obtained by Mr Howlin from the council on 18 August 2010, which they claim is evidence that Marsh Street is included in the council's road inventory at present. The council challenges that the map in fact shows that.

30 Other documents in this category are of questionable relevancy. Some relate to other streets in and outside the municipality and to rules for funding rural roads in general.

31 The second category of documents includes documents that were produced before the appeal to this Court but were not placed before it for consideration at the hearing of the appeal. Some were before Slicer J at the hearing of the respondents' action against Mrs Brinckman. At their highest so far as probative value is concerned, some are evidence that Marsh Street was on the council's list of rural roads in 1977. Some are strictly not evidence of anything that is material, such as the Local Government Act 1935, extracts from a Land Titles Office practice book, and the first page of the Clarence Municipality's by-laws in the Gazette of 27 May 1913.

32 The respondents seek to use some of the documents as supporting a challenge to a statement in my judgment at pars[25] and [42] that I was not persuaded that the trial judge erred when he found that a plan containing five lots was the one approved by the council on 9 November 1944 and that there was no evidence of approval of a nine lot subdivision. Whether the challenge is a sound one matters not to the outcome of the appeal. As I said in par[25], it did not matter concerning the relevant intention of T G Brown and the council. Further, even if I am wrong about that, it cannot be determinative of the outcome of this appeal concerning costs.

33 The respondents also seek to rely on a passage in the transcript of evidence of Mr Howlin at the hearing before Slicer J on 20 August 2008 on the application for non-party costs. It was before this Court and in no sense is it new or fresh evidence that could justify re-opening the hearing of the appeal.

34 The third category of documents does not include fresh evidence. The documents are largely ones that were produced at either or both the trial and the hearing by the same judge of the application for non-party costs but, according to the respondents, they were not produced to this Court. They do not justify re-opening the hearing of the appeal. Most of them have not been produced to this Court for inspection. The respondents' list of them suggests that at their highest, some may support a claim that in 1977 Marsh Street was in the council's list of rural roads and the council made a request for government funding for the street.

35 The fourth and final category of documents contains documents the respondents say were only discovered by them on 11 October last. Most of them have no direct relevance to the outcome of the appeal and the outcome of the application for non-party costs. Two directly relate to Marsh Street and suggest that it was in a classification list of Tasmanian roads kept by the Department of Main Roads in August 1987.

36 It was claimed by the respondents that the Court should find that the council failed to produce documents that showed that Marsh Street was treated by the council as a public road and maintained it as such. However, although a number of documents that may not have been disclosed previously may evidence that, it is difficult to understand what difference they would have made to the outcome of previous hearings. For example, in his judgment following the trial of the Brinckman action, Slicer J found as a fact, as part of his findings concerning the public use that had been made of Marsh Street, that the council had included it on its maintenance programs over a long period of time for at least the western portion and, more recently, to at least the mid to eastern sections. He also found that Marsh Street was shown on plans as a named street, it was signposted as a named street, it was acknowledged by its name by the council from 1983, and the council had not levied rates in respect of it.

37 Obviously, if the documents had been before Slicer J, they would not have affected the outcome of the Brinckman action. Arguably, some of them might have strengthened their case against Mrs Brinckman for a common law dedication.

38 How is it then that the new documents might persuade the Court to make a non-party order for costs against the council? In his affidavit, Mr Howlin said that if the new documents had been disclosed to the respondents by the council, they would have sued the council in about 2003. I infer that he meant that they would have sued the council then for a declaration that Marsh Street was a public highway.

39 In his submissions to the Court, Mr Howlin asserted that if they had been aware of the documents, they would not have sued Mrs Brinckman at all for a declaration that Marsh Street had been dedicated as a public highway based on user in accordance with common law. He claimed that instead they would have sued the council for a declaration under both common law and statute. I do not accept that they would not have sued Mrs Brinckman. Any court order that the street was a public highway needed to bind her to be effective.

40 In her submissions, Mrs Howlin asserted that if the respondents had been aware that the council had an obligation to maintain Marsh Street, they would have issued a writ against the council.

41 I am not persuaded that the Court should re-open the hearing of the appeal for the reasons given by the respondents. The question whether Marsh Street could have become a public highway without compliance with the formal requirements of statutes such as the Towns Act, s48, and the Local Government (Highways) Act, s7, is a major issue between the respondents and the council and it has not been resolved. The documents the respondents wish to rely on do not resolve it. The issue raises questions of statutory interpretation. It is a central plank in the council's statement of claim in its unresolved action against the respondents for a declaration that the street is not a public highway.

42 This Court should not determine such questions on the hearing of the application for non-party costs incurred in the Brinckman action. If they are determined in the respondents' favour in the action brought against them by the council, it is highly likely that the respondents will obtain an order for the costs of that action against the council.

43 None of the new documents that have been put before the Court persuade me that the Court's decision that the council should not be ordered to pay the respondents' costs of the Brinckman action may have been wrong or should be revisited. Before the Court could make the order against the council, it would need to be satisfied, at the very least, that the respondents ought to have succeeded if instead of suing Mrs Brinckman, they had sued the council for a declaration that Marsh Street was a public highway. I am not satisfied that such an action ought to have succeeded. The determination of that will be resolved, no doubt, by the outcome of the action recently commenced by the council against the respondents. It is a major unresolved issue.

44 For these reasons, I have concluded that it is not in the interests of justice that the hearing of the appeal be re-opened. I would refuse the application to re-open the hearing of the appeal. The Court's decision published on 23 April 2010 should stand.

The costs of the application for non-party costs

45 The usual rule is that the unsuccessful party should be ordered to pay the costs of the successful party. There is no reason why the usual order should not be made.

46 I would order that the respondents pay the council's costs of the appeal to this Court, including the costs of the interlocutory application filed by the respondents on 11 October 2010, and of the application for non-party costs filed on 14 January 2008.

47 I have had the opportunity to read the draft reasons of the Chief Justice in this matter. I agree with his reasons and the orders he proposes.

48 I agree with the reasons of the Chief Justice and the orders he proposes.