Costs as between the plaintiffs and Mr Camenzuli - Consideration and conclusion
- In what follows I substantially adopt the submissions put by Mr Robertson which is why I do not set them out separately. What follows are my reasons for rejecting Mr King's submissions and for making the orders sought by Mr Robertson for his client set out in orders 1 to 3 at [2] above.
- I do not accept that the success that the plaintiffs enjoyed - limited to the proper construction of cl 21.6.4(2) - is the relevant event for the purposes of the exercise of the Court's costs discretion. The event is the outcome of the proceedings as expressed in its orders. The Principal Judgment does not support the making of any of the declarations or injunctions sought in the plaintiffs' respective amended summonses (set out in [15) of the Principal Judgment).
- It is, however, then necessary to address the notations, declaration and injunction which Mr King proposed for the purposes of today's hearing that I have set out at [3] above. It is convenient to deal with each of those in turn.
- The first notation concerns cl 13.2.4 of the Constitution. That notation is not appropriate. This is not a case where some intermediate step or agreement needs to be recorded as a notation to explain why the Court has then gone on to make whatever orders it has in fact made. The parties did not require the Court to adjudicate the question of the applicability of cl 13.2.4. That is recorded in the judgment, which must be left to speak for itself. A notation is not itself a source of legal rights or obligations and might be apt to mislead that it has such an effect if it is included in the Court's orders disposing of the proceedings.
- Furthermore, I do not accept that there was any relevant concession that would have any impact upon costs by Mr Camenzuli in relation to cl 13.2.4. The amended summonses were filed on 15 and 16 July 2021, but had been notified earlier. Mr Camenzuli's submissions responded to them as notified and indicated that there was no issue about cl 13.2.4. That is not a "concession" of the relevant kind that may impact upon costs because the plaintiffs were not put to expense referable to resistance by Mr Camenzuli.
- The second proposed notation relates to cl 26.1.4. I do not propose to make this notation for the same reasons that I have expressed in [9] above as to why it is not appropriate to make a notation of the kind sought about cl 13.2.4. Insofar as these proceedings were conducted on the basis that both the City of Blacktown LGC and, to the extent it may be relevant (see [16] and [34] of the Principal Judgment), the City of Cumberland LGC were in existence, there could be no dispute about the applicability of cl 26.1.4. For the reasons I have given, it would be quite inappropriate now to make any notation about something that was not really an issue in these proceedings.
- It is then convenient to consider together the declaration and injunction sought by Mr King in relation to cl 21.6.4 of the Constitution. Mr King eloquently submitted that this was a case of the kind dealt with by Barrett AJA in EB 9 & 10 Pty Ltd v Owners Strata Plan 934 (2018) 98 NSWLR 889; [2018] NSWCA 288, in particular at [34] and [36] (Meagher and Gleeson JJA agreeing):
"34 What s 75 of the Supreme Court Act 1970 (NSW) calls "binding declarations of right" are in the nature of final relief binding on the parties and operating as a res judicata or issue estoppel. Such declarations can only be made by reference to some concrete situation of controversy defined by facts found by the court or agreed by the parties: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [48]-[49]. It is that feature that distinguishes a declaration from an advisory opinion about a hypothetical possibility: Jackson v Slattery (1984) 1 NSWLR 599 at 608-609. It is no obstacle to the grant of declaratory relief that the concrete situation of controversy relates to future actions. Relief in the nature of a quia timet declaration is available to establish what, according to existing rights and obligations, the parties' positions will be if some defined event happens, at least where it is reasonably foreseeable that the event may happen. Thus, in Woolmington v Bronze Lamp Restaurant Pty Ltd [1984] 2 NSWLR 242, the court declared that one party was entitled to be discharged from a particular liability owed to the other if and when a third party made a particular payment to that other party. A like declaration was made more recently in Clark v Matton Developments Pty Ltd [2016] QSC 251. …
36 The status of a declaration as a means of "enforcing" the underlying right is, to my mind, put beyond doubt when regard is had to the steps that are available in consequence of the obtaining of the declaration. As in the present case, a declaration will often state the successful plaintiff's right in a way making it clear that certain future conduct of the defendant will amount to an invasion of that right. It is commonplace for a plaintiff to seek not only a declaration but also an injunction enjoining the conduct in question. Sometimes, an injunction will be refused as a matter of discretion, even though a declaration is made and grounds for a grant of injunctive relief are shown. In Port of London Authority v Cairn Line of Steamships Ltd [1913] 1 KB 497, for example, Scrutton J awarded a declaration against a shipping company but declined to grant an injunction "because I have no doubt that the defendants will comply with the declaration made". In other cases, the award of a declaration may be accompanied by an express grant of liberty to apply for further relief as may be needed: see, for example, Watt v Mortlock [1964] Ch 84 at 88. An express grant of liberty to apply is, however, not necessary. In Royal Insurance Co Ltd v Mylius (1926) 38 CLR 477; [1926] HCA 49, Isaacs J said (with the concurrence of Knox CJ and Starke J) at CLR 497:
"Every order for declaration of right carries with it liberty to apply, and, if the defendant acts contrary to it, the Court on a proper application, and on proper notice, may enforce it.""
- There will be many situations where a declaration in the terms of, for example, a provision in a statute or a clause of a contract will be the appropriate outcome of proceedings, combined with an injunction to enforce compliance or restrain its breach. The difficulty in the present case which stands in the way of any declaration or order being made of the kind sought by Mr King is that in its reasons the Court has made perfectly clear that the content of the obligation to consult with the LGC is a fact-sensitive exercise that will vary from case to case (see [6(2)] of the Principal Judgment and [86] of Zaiter v Ruddock [2021] NSWSC 880, incorporated into the Principal Judgment by reference at [50]).
- In these proceedings, the Court has not been called upon to consider, to borrow the language of Barrett AJA, "some concrete situation of controversy defined by facts found by the Court or agreed by the parties" relevant to consultation under cl 21.6.4(2). On the contrary, in the circumstances of this case, the Court has eschewed expressing any definitive view about what the content of the obligation to consult might be in any given case. In those circumstances, there is no utility in making a declaration of the kind sought, not least because at this stage there has been no decision made which might then invoke the requirement to consult with a LGC before the State Executive can exercise the powers in cl 21.6.4. If and when that happens, there will then be a factual context in which the application of the obligation to consult can be considered.
- This problem is even more acute in relation to the injunction that was sought in the plaintiffs' proposed order 4 at out at [3] above. It goes without saying that the Court will strain to ensure that the language of any injunction is as clear as it can possibly be to ensure that a party knows what it can or cannot do on pain of contempt. In the absence of the Court having had to consider a particular set of facts about what was or was not proper consultation for the purposes of cl 21.6.4, it is not possible to lay an injunction in the general terms of the clause. Those who would be bound by such an injunction would be left uncertain in any given case whether what they proposed to do would or would not satisfy the obligation to consult. Furthermore, there is no evidence before the Court of any threat that would justify quia timet relief to the effect that if and when a decision is made by State Executive it will not comply with the obligation to consult with a LGC as the Court has found must be done before it can exercise its powers under cl 21.6.4.
- Finally, the orders propounded by Mr King also included an order that there be liberty to apply on 24 hours' notice in writing. While the practical reasons for that may be readily understood, I do not propose to make that order. The dismissal of these proceedings brings these proceedings to an end. In my respectful view, that means there will be nothing left that could properly be the subject of an order for liberty to apply.
- It follows that if any further dispute arises between these parties that may be said to be relevant to the issues dealt with in the Principal Judgment, it will be necessary for any such fresh dispute to be brought before the Court by new proceedings.
- For these reasons, none of the notations or other orders sought by Mr King in the draft orders propounded on behalf of the plaintiffs this morning will be made.