Dibb v Transport for New South Wales

Applicable principles

1. The principles that govern an application pursuant to UCPR, r 36.16 were recently summarised by this Court in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [13]-[22]. The power conferred under UCPR, r 36.16 is to be exercised "sparingly and with caution" having regard to the importance of the finality of litigation, and "does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them": Majak v Rose (No 5) [2017] NSWCA 238 at [12]-[13] (Leeming and Simpson JJA, Emmett AJA) ("Majak"). The jurisdiction is not to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their case: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303; [1993] HCA 6 (Mason CJ).
2. Whilst jurisdiction under UCPR, r 36.16 may be exercised where the Court has apparently proceeded under a misapprehension, the reference to misapprehension in this context is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect: Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 at [4] (Meagher and Brereton JJA).

Determination

1. The applicants advance, in essence, four contentions in support of the relief sought in the Motion.
2. First, the applicants contend that the public interest in favour of prioritising the protection of landowners who have been dispossessed by a unilateral exercise of executive power should be weighed above the public interest in the finality of proceedings. The applicants rely in this regard upon the special nature of proceedings arising out of compulsory acquisition of property. In support, they rely upon the general principle that applicants in first instance proceedings arising out of compulsory acquisition of property should not be deterred by the prospect of an adverse costs order if their case proves unpersuasive and should be entitled to recover their costs of those proceedings: Banno v The Commonwealth (1993) 45 FCR 32 at 51 (Wilcox J); see also as to this Dillon v Gosford City Council [2011] NSWCA 328; (2011) 184 LGERA 179 at [60]-[72] (Basten JA, Macfarlan JA and Handley AJA agreeing). Consistent with this general principle, the respondent was ordered to pay the applicants' costs at first instance. As explained in the judgment of this Court in Roads and Maritime Services (NSW) v United Petroleum Pty Ltd (2019) 99 NSWLR 279; [2019] NSWCA 41 at [123] (per Sackville AJA), no such principle applies on appeal. The applicants also rely upon the general principle that doubts in determining compensation for compulsorily acquired land should be resolved in favour of the landowner, as demonstrating the "special nature" of such proceedings: Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358; [1947] HCA 10.
3. This contention should be rejected. The applicants have now had the benefit of detailed consideration of their contentions following a ten-day hearing in the LEC and a two-day hearing in this Court, in which the applicants were permitted to substantially amend their notice of appeal for the third time on day two of the appeal hearing. In these circumstances, the interest in the finality of legal proceedings must be accorded due weight. It is not in any way displaced by the character of these proceedings as arising out of a compulsory acquisition of property.
4. Second, the applicants submit that they did not have an adequate opportunity to present submissions on appeal. Broadly, the applicants submit that they should have been specifically asked by the Court what evidence they relied upon in support of their grounds of appeal, or what matters they wished to raise in support of specific contentions they advanced on appeal. The applicants contend that, from a layperson's perspective, "appeal cases require directions from the Court on what the Court wants to hear because of the restricted time allocated for appeals." The applicants say, "as unrepresented litigants, they were caught out" in this regard. The applicants complain further that the Court found (at [51]) that the evidence adduced did not come close to proving fraud by the respondent in adducing evidence on the question of hydrology. The applicants contend that they had sought, but were not permitted, to adduce such evidence on appeal. The applicants say that they now wish to be heard on matters that the Court determines are of primary importance from the "array" of pleaded grounds.
5. These contentions should be rejected. The applicants were given a reasonable opportunity to be heard on appeal. The applicants filed detailed written submissions on both the appeal and the cross-appeal. The applicants also relied upon two further sets of written submissions handed up on day two of the appeal hearing, one on the application to further amend their notice of appeal and the other on the cross-appeal. The issues to be determined on appeal arose from the applicants' notice of appeal (ultimately from the third amended notice of appeal) and submissions, having regard also to the submissions advanced by the respondent. The applicants were well apprised of those issues and addressed those issues in their submissions.
6. Whilst, somewhat inevitably, over the course of an appeal hearing some issues will assume greater significance than others, it was for the applicants to advance the material upon which they wished to rely in support of the grounds of appeal they advanced before the Court. An adversarial justice system requires the parties to bring their own arguments, and evidence, to court: see eg Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83 at [94]. Consistent with the principles set out above, the matters relied upon by the applicants do not provide any basis for this Court now to set aside or review its decision under UCPR, r 36.16.
7. Third, the applicants contend that the Court erred in its judgment (at [172]) in stating that neither party submitted that the costs of the appeal should not follow the event. In this regard, the applicants point to their written submissions on the appeal at [135]-[137], where they sought an order for indemnity costs as regards the costs at first instance. Those submissions did not go to the costs of the appeal. Moreover, in circumstances in which the respondent was entirely successful on the appeal and cross-appeal, there is no reason why the respondent should be ordered to pay the costs of the proceedings at first instance on an indemnity basis. Nor is there any basis upon which this Court should order that the respondent reimburse the applicants their filing, hearing and out-of-pocket costs for the appeal proceedings. The applications for such orders in the Motion are refused.
8. The applicants also point to their response to the application by the respondent for leave to cross-appeal, in which the applicants asked that there be no order for costs on the cross-appeal. In support of this request, the applicants relied in this document upon the general approach, discussed above, to costs in first instance proceedings arising out of a compulsory acquisition of property and upon the decision in Anderson v Commissioner of Highways (No 2) [2019] SASCFC 140 at [8]-[9], where the Full Court of the Supreme Court of South Australia held that an appellant should not be penalised in costs where the appeal raised a novel point of statutory construction and raised a question of public interest.
9. The applicants' submissions on the cross-appeal do not address the costs of the appeal and do not support the applicants' contention that there should have been no order for costs on the cross-appeal in this case. The questions of statutory construction raised in the cross-appeal were determined by this Court in Sydney Metro v G & J Drivas Pty Ltd [2024] NSWCA 5; (2024) 258 LGERA 197 ("Drivas (CA)"), handed down between the proceedings at first instance and the appeal. The applicants' submissions on the cross-appeal did not raise a matter of public interest. Further, as set out above, the general approach to costs in cases arising out of compulsory acquisition of property do not apply on appeal. Moreover, this was not a case in which it was appropriate to separately consider the costs of the appeal and the cross-appeal. The respondent was successful on both. Very little time was spent on the cross-appeal during the hearing (in part because the applicants helpfully handed up further written submissions on the cross-appeal during the hearing), and the written submissions as to the appeal were significantly longer and more detailed than those on the cross-appeal. Whilst the appeal raised multiple questions requiring detailed consideration of the evidence and transcript, the cross-appeal raised in essence one issue, being the significance of the decision of this Court in Drivas (CA).
10. In these circumstances, there is no merit in the applicants' contention that the Court should now give them a further opportunity to make submissions as to the costs of the appeal or cross-appeal. Contrary to the suggestion in the "Appellants' Responses to Appeal Judgment", had they wished to do so, the applicants could readily have made submissions as to costs during their oral submissions, in their two sets of written submissions on the appeal or in their further written submissions on the cross-appeal handed up at the hearing. The applicants were in no way precluded from doing so.
11. Fourth, the applicants submit that, in a number of instances the Court misapprehended the facts and law. Within this broad ambit, the applicants contend that in its judgment on appeal: 1. The Court misunderstood the decision in Drivas (CA); and 2. The Court attributed to the applicants forensic decisions taken by their Senior Counsel at first instance.
12. Further the applicants contend that the Court's finding (at [127]) that there was "no substance to the contention that the primary judge failed to value the Property on the basis of its highest and best use" was a "contention" that "could only have been answered by an array of the town planning and valuation evidence" which would have been "detailed" and "time consuming."
13. Having regard to the principles set out above, none of these matters provides a basis to set aside or review the Court's judgment or orders under UCPR, r 36.16. Each of the contentions set out above is properly characterised as an attempt by the applicants to reagitate the matters raised in their grounds of appeal or on the cross-appeal, and to supplement the submissions they made on the appeal and cross-appeal. Nor do any of the matters identified in the "Appellants' Responses to Appeal Judgment" take the matter further. The matters there set out amount to no more than the expression of disagreement with the Court's decision (including, at some length, with the decision to refuse leave to rely upon further evidence on appeal), the enumeration of reasons why they contend that the Court erred, and continuing complaints about how Senior Counsel ran their case at trial. To the extent that, in this document, the applicants contend that they were not given an opportunity to explain matters, did not have the opportunity to support the grounds of appeal by reference to matters of fact, or did not have the opportunity to make submissions on appeal, those assertions are rejected. The applicants' written and oral submissions were replete with factual references and it was readily apparent that the applicants were aware of the need to support their submissions, if appropriate, with evidentiary references.
14. In these circumstances, the application to set aside or vary the judgment of this Court under UCPR, r 36.16 should be dismissed.

Conclusion

1. The Court makes the following order: 1. Dismiss the applicants' notice of motion filed on 12 July 2024.

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: 26 July 2024