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[2016] WASC 386
Supreme Court of WA
2017-01-18
Miere J
Original judgment source is linked above.
4 The court has discretion to award costs in cases of judicial review and there are no strict guidelines laid down as to how that discretion should be exercised. The general rule is that the successful party will recover their costs.
5 It should be observed that in the case of judicial review applications the party who must pay the successful applicant's costs is usually the other party to the application and not the respondent decisionmaker. This court will rarely exercise its discretion to award costs against respondent decision makers: City of Subiaco v Minister for Planning & Heritage (Unreported, WASC, Library No 970051, 19 February 1997) (Kennedy, Wallwork & Scott JJ).
6 AM Land submitted that this is not a case where costs should follow the event. AM Land referred to R v Hastings Licensing Justices, Ex-parte John Lovibond & Sons Ltd [1968] 1 WLR 735 as illustrating that there is a general principle that in cases such as these the court should in its discretion make no order as to costs. In that decision Lord Parker CJ said:
It is very rare that this court makes any award in regard to costs on an application for one of the prerogative orders, unless the party has appeared and contested the application. Counsel for the applicants has, however, pointed out in the present case that the respondents, no doubt under a bona fide misconception as to their rights under the licensing Acts, succeeded in persuading the magistrates to adopt the same misconception and have fought this case, as it were, up to 14 December when they wrote saying they were no longer contesting the application. There is a precedent for making an award of costs in such a case: see R v Birmingham Union Guardians ((1874) 44 LJMC 48) (738).
7 His Honour therefore ordered that respondents pay the applicant's costs up to 14 December.
8 Put against that authority are two decisions of this court. The first was Field Deployment Solutions Pty Ltd v Jones [2015] WASC 136. In that decision Mitchell J dismissed the application for judicial review and ordered that the applicant pay the first and second other parties' costs of the application. The second was Delmere Holdings Pty Ltd v Green [2015] WASC 148. Kenneth Martin J in that decision said:
Delmere, as the successful party on the application, both in quashing Mr Green's Determination and in resisting the correlative application to register and enforce that Determination as a judgment of this court, should, prima facie, receive its taxed costs upon both applications [145].
9 The language suggests that his Honour's observation was obiter and I note His Honour stated that he would determine any residual disputation on the papers. In any event, the case is distinguishable from R v Hastings in that his Honour observed that the application in that case was actively resisted by the other party: Delmere Holdings v Green [5]. Further, the other party in that action also sought to enforce the determination the subject of the application: Delmere Holdings v Green [6]. Another point of difference between those authorities and R v Hastings is the fact that they were contested throughout the proceedings.
10 The approach of the courts to uncontested applications of a similar kind to this is seen in Re Nicholls SM; Ex Parte Plutonic Operations Ltd [2002] WASCA 232 (S) (Wheeler J). In that case the court had made absolute an order nisi for certiorari. The applicant sought its costs for both the order nisi stage and the order absolute hearing. The applicant was wholly successful in obtaining the order nisi in a decision of Roberts-Smith J delivered on 20 June 2001 after a hearing where the objector appeared and unsuccessfully opposed the order nisi: Re Guests; Ex Parte Plutonic Operations Ltd [2001] WASC 158. However, the applicant was not awarded its costs of the order absolute hearing. Wheeler J made that decision on the basis that the applicant was only partly successful in the order absolute hearing and the objector did not participate in that hearing and had filed a notice of intention to abide on 15 May 2002. The court had heard argument on whether an order absolute should be made on 12 June 2002.
11 Cooper & Oxley also submitted that they should have the costs of the application on the basis that AM Land materially contributed to the jurisdictional error of the adjudicator by making submissions that were incorrect in law. Parker CJ's decision in R v Hastings was that where the other party had a misconception as to their rights under an Act and persuaded the decision maker to adopt that misconception they would only be required to pay the costs of the applicant insofar as they actively opposed the application. I am not convinced that the conduct of AM Land in the adjudications should lead to the court awarding costs against AM Land in the subsequent judicial review applications.
12 AM Land entered a memorandum of appearance in this matter on 25 February 2016. AM Land attended chambers hearings on 25 February 2016 and 1 April 2016. At the appearance on 25 February 2016 counsel for AM Land, Mr Guerrini, stated that AM Land would have Dr Hockley appearing as counsel in respect to the argument. On 1 April 2016 Chaney J ordered AM Land file and serve any affidavit or submissions by 15 April 2016 and 13 May 2016 respectively. Counsel for AM Land, Dr Hockley appeared with Mr Guerrini. AM Land did not file any affidavits or submissions, and it filed the Notice on 7 November 2016, two days before I heard the matter. AM Land submits that its conduct in no way contributed to the incurrence of costs by the applicant. It was further submitted that the applicant had the onus to satisfy the court of jurisdictional error and the matter was required to be heard. At no stage before filing the Notice did AM Land suggest that they would not contest the application.
13 The appropriate order is that AM Land should pay the costs of Cooper & Oxley up to 7 November 2016. AM Land appeared through counsel on two occasions in relation to these matters and did not file the Notice until two days before the hearing. Order 56 r 4 of the Rules gives a person who is served with an application the option to enter an appearance or file and serve on the applicant a notice stating the person does not intend to take part in the proceedings and will accept any order made by the court on the application other than as to costs.
14 This is not a case where the second respondent played no role in the judicial review proceedings, and it was only by filing and serving the Notice that AM Land signalled that it was not going to oppose the application and would not be appearing to make oral submissions. Given that AM Land did file the Notice I find they took steps, even at that late stage, to reduce the cost of the proceeding and the time it would occupy. In circumstances where the hearing would need to have gone ahead in any event, I find it appropriate that AM Land pay the applicant's costs up to the time it ceased opposing the application and gave notice that it would abide the decision of the court. I will therefore order that AM Land pay the costs of Cooper & Oxley up to 7 November 2016.
Section 6 of the Act relevantly provides that a payment dispute arises if by the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full, or the claim has been rejected or wholly or partly disputed. The payment dispute the subject of the adjudication arose when Cooper & Oxley did not pay the amount claimed by AM Land by its progress claim 5 by the time when the amount claimed was due to be paid under the subcontract or when Cooper & Oxley rejected or wholly or partly disputed the claim. The payment dispute relates to whether Cooper & Oxley was liable to pay the sum claimed by AM Land in its progress claim 5. The payment dispute did not encompass a claim by Cooper & Oxley that AM Land pay to it the amount it asserted AM Land was liable to pay to it for liquidated damages and rectification damages for two reasons. First, in its response Cooper & Oxley raised its set off claim as a shield but not a sword. Cooper & Oxley raised its set off claim as a defence to the claim made against it but did not claim that AM Land should make any payment to it. Secondly, any claim by Cooper & Oxley that AM Land should pay to it an amount in relation to the performance by AM Land of its obligations under the subcontract would be a separate payment claim, the rejection of which would give rise to a separate payment dispute. Section 31(2)(b) of the Act does not empower the adjudicator to determine a payment dispute unless the claimant has made a separate adjudication application in respect of that payment dispute: Alliance Contracting Pty Ltd v James [2014] WASC 212 [50] [76] (Beech J).
23 A determination made pursuant to s 31(2)(b) of the Act can be challenged by judicial review: Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217 [11] (Martin CJ), [7] [8] (McLure P), [92], [95] (Murphy JA). The adjudicator made a jurisdictional error. The adjudicator found that he was precluded by s 32(3)(b) from considering Cooper & Oxley's set off defence to AM Land's claim. That was an erroneous construction of the Act. An adjudicator may not adjudicate simultaneously two or more payment disputes without the consent of the parties but that does not preclude him from considering the respondent's counterclaim or set off raised by way of defence to the applicant's claim. Sections 27, 31(2)(b) and 32(1)(a)(ii) of the Act require the adjudicator to take into account the respondent's response, including the merits of any counterclaim or set off, in reaching a determination. The adjudicator did not take into account Cooper & Oxley's set off defence raised in its response. The adjudicator thereby failed to take into account a matter which the Act requires he take into account in determining the payment dispute. The adjudicator misconceived the function which he was performing and the extent of his powers.
CITATION : COOPER & OXLEY BUILDERS PTY LTD -v- STEENSMA [2016] WASC 386 (S)