Drake v Randwick City Council

Introduction

1. As noted above, written submissions from Mr Astill were filed on 23 July 2021. Written submissions in reply for Ms Drake were received from Mr Tomasetti SC on 19 August 2021. Further submissions from Mr Astill responding to those made by Mr Tomasetti were received on 25 August 2021.

The relevant statutory provisions

1. The only statutory provisions requiring consideration on costs in Ms Drake's Class 4 proceedings are s 98(1) of the Civil Procedure Act 2005 (the Civil Procedure Act) and r 42.1 of the Uniform Civil Procedure Rules 2005 (the UCPR). The first of those provisions is in the following terms: 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act - (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
2. The second of these provisions is in the following terms: 42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

The written submissions

1. The written submissions on behalf of the Council and on behalf of Ms Drake, in both the Class 1 and Class 4 costs issues, were comparatively brief. It is appropriate to set them out in full, relevantly, in each of the costs matters requiring determination.

The Council's submissions

1. The written submissions provided by Mr Astill for the Council, in support of the Council's Class 4 costs application were in the following terms. Class 4 Proceedings 7. Section 98 of the Civil Procedure Act 2005 provides the Court with a wide discretion as to costs, albeit one that is subject to the rules of court. Pursuant to UCPR 42.1 the general position is that costs follow the event in class 4 proceedings. 8. It was entirely a matter for the applicant Ms Drake to commence and pursue the Class 4 Proceedings, including the manner of pleading her case. The Council had no option (apart from submitting) but to join issue and prepare its defence. There was significant preparation required including briefing senior and junior counsel and preparing written submissions. 9. That, in relation to the Class 4 proceedings, both: a. Moore J declined to hear them due to Ms Drake's defective pleading, and b. ultimately they became redundant due to the outcome in the Class 1 Appeals (and were dismissed), should not affect the outcome that costs follow the event. Specifically, neither of these events was in any way attributable to any act of the Council that would adversely affect its entitlement to costs. 10. Given the presumption is that costs follows the event, it is incumbent on Ms Drake to articulate arguments to displace it. The Council will need to make further submissions in reply to those the Council anticipates Ms Drake will make in this regard.
2. As can be seen from Mr Astill's paragraph 10 above, he indicated that the Council would reserve any more detailed submissions until its response to the submissions which would be advanced on Ms Drake's behalf seeking to resist the making of a costs order in the Council's favour in the Class 4 proceedings.

The submissions for Ms Drake

1. The written submissions provided by Mr Tomasetti for Ms Drake, opposing the Council being awarded costs in the Class 4 proceedings, were in the following terms. Relevant Statutory Provisions 1. s 98 of the Civil Procedure Act 2005 provides that costs are in the discretion of the Court. 2. UCPR 42.1 provides that the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made. 42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. Relevant Principles 3. In Latoudis v Casey [1990] HCA 59; 170 CLR 534, the High Court considered the proper approach to be applied by a court of summary jurisdiction in exercising a statutory discretion to award costs in criminal proceedings which had terminated in favour of a defendant: see at 537 (Mason CJ). In answering that question, a court must look at the matter primarily from the perspective of the successful party. To do so conforms to fundamental principle. In civil proceedings, costs are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings. 4. Where there was no successful party in the proceedings, as a general rule, there should be no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 McHugh J at 624-625. "The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided." His Honour added: "If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings." 5. The Court should not resolve the issue of costs by engaging in something in the nature of a hypothetical trial: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201. Relevant facts 6. On 8 July 2020 the development application was made seeking consent for construction of a dual occupancy (attached) at 27 Adams Avenue Malabar ("Dual Occupancy DA"). Council did not determine the development application. 7. On 22 December 2020 the applicant appealed. 8. On 22 December 2020 the development application seeking consent to strata subdivision of 27 Adams Avenue, Malabar ("Strata Subdivision DA") was made. 9. The Class 4 proceedings were filed on 24 December 2020 seeking a declaration as to the true construction of Clause 4.1A. In the context of the appeals and the decisions in: a. Kelly v Randwick City Counci1; b. Kingsford Property Developments v Randwick City Council; and c. MMP 888 Pty Ltd v Randwick City Council the Class 4 proceedings did not raise a hypothetical question. The decision in MMP 888 meant that the law was in an uncertain state. 10. Randwick Council contended that the Strata Subdivision was prohibited notwithstanding the decisions in Kelly, Kingsford Property Developments and MMP 888. 11. The declaratory relief sought was twofold: a. A declaration that the dual occupancy (attached) which was the subject of the Dual Occupancy Class 1 appeal "is development for a "dual occupancy (attached)" within the meaning of that phrase in the Randwick Local Environmental Plan 2012 ("RLEP 2012") and is development that is permissible with development consent granted thereunder". b. A declaration that strata subdivision of the site known as 27 Adams Avenue Malabar in accordance with the proposed strata plan referred to in the Summons "is permissible with development consent granted pursuant to the RLEP 2012." 12. On 5 March 2021 Randwick Council filed a statement of facts and contentions in the Strata Subdivision Class 1 proceedings contending for a meaning of Clause 4.1A which was contrary to Kelly, Kingsford Property Developments and MMP 888. 13. On 12 March 2021, Pain J. listed the Class 4 proceedings for hearing on 9 June 2021 and made directions. 14. On 26 March 2021, the Court raised a concern that the declaratory relief sought by the applicant impermissibly sought "judicial advice". Rather than join issue with the matters raised by the Court, the applicant's counsel immediately offered to amend the Summons. The Court required the applicant to file a Notice of Motion to amend the Summons. 15. On 9 April 2021, Robson J. granted leave to the applicant to file and serve the amended summons. 16. On 7 and 8 June 2021 case management was agreed between the parties and the Court. After the site inspection on the morning of 7 June 2021, the trial in the Dual Occupancy Class 1 proceedings would commence. When the trial in the Dual Occupancy Class 1 proceedings had concluded on 8 July 2021, the trial in the Strata Class 1 proceedings would commence and the meaning of Clause 4.1A was to be traversed in the Class 4 proceedings on 9 June 2021. 17. It was on this basis that the trial of the Strata Class 1 proceedings was concluded on Tuesday, 8 June 2021. 18. At the commencement of proceedings on 9 June 2021 the Court proposed that the parties agree that the hearing of the Class 4 proceedings which had been listed for that day, be vacated and the Class 4 proceedings be adjourned to the Friday after judgement was to be delivered in the Dual Occupancy Class 1 proceedings. The Court further proposed the Strata Class 1 proceedings be reopened for argument concerning the true construction of Clause 4.1A. The parties agreed. 19. No judgement was ever made in the Class 4 proceeding as the Court declined to hear it. 20. On 9 July 2021 Pain J. made an order by consent dismissing the Summons and made various directions, also with the consent of both parties, concerning costs. 21. Neither the applicant nor the respondent surrendered to the other. The parties had prepared themselves for argument but, in the face of the Court's disposition, consented to have the Class 4 proceedings dismissed. 22. The Court, of its own motion, had refused to hear argument concerning the true construction of Clause 4.1A, at least in the Class 4 proceedings, taking the view that the parties were "seeking judicial advice". No point is served by arguing now whether that proposition was correct, but the observations of Mahoney J. In P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 are apposite: "The power of the Supreme Court of this State to make declarations is a beneficial power. In Forster v. Jododex Australia Pty. Ltd (1972) 46 A.L.J.R. 701, at p. 705 adopted the description of it as being a very wide one, and "almost unlimited". In Commonwealth v. Sterling Nicholas Duty Free Pty. Ltd. (1972) 46 A.L.J.R. 241., a case involving the delimiting in advance by declaration of the power of the Commonwealth and its officers to restrict the activities of a company which desired to carry on business in a particular way, Barwick C.J. said at p 243: The jurisdiction to make a declaratory order without consequential relief is a large and most useful jurisdiction. In my opinion, the present was an apt case for its exercise. The respondent undoubtedly desired and intended to do as he asked the Court to declare he lawfully could do. The matter, in my opinion, was in no sense hypothetical, but in any case, not hypothetical in a sense relevant to the exercise of this jurisdiction. Of its nature, the jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law. Indeed, it is that capacity which contributes enormously to the utility of the jurisdiction." 23. The Court presented both parties with a firm pathway - the parties cannot proceed with this Class 4 action and should determine the question in the Strata Subdivision Class 1 proceedings. Proceedings were briefly adjourned to allow the parties to discuss that proposal. Each agreed, without admission, to adopt that course. 24. So it was that the Class 4 proceedings became "futile" using the term adopted by McHugh J. in [4] above. Usually then, the Court will make no order as to the cost of the proceedings. 25. There was no "event" as referred to in UCPR rule 42.1 by reference to which the Court can determine that either party would have been successful: Lai Qin @ 624 - 625. The Council's Conduct has been Unreasonable 26. The applicant needed to have the true construction of cl 4.1A resolved by a judge of the Court. The law was in a confused state. There were three decisions (now four) each in point and each by Commissioners of the Court, but one of which was not consistent with the other two decisions. See MMP 888 Pty Ltd v Randwick City Council per Horton C. A decision by a judge of the Court was called for. 27. The Council caused this state of uncertainty by refusing to apply the law as to the true meaning of cl 4.1A in accordance with two consistent decisions of the Court. It did not appeal the decisions in either case. 28. Instead, it refused to accept the correctness of the Court's decisions in Kelly and Kingsford and argued in MP888 before Commissioner Horton that the two decisions ought not to be followed. 29. That was unreasonable conduct on the part of the Council. 30. The Council is a model litigant: Logue v. Shoalhaven Council [1979] 1 NSWLR 537 and Mahatharensa v. State Rail Authority [2008] NSWCA 201. The Council is a statutory body representing the Crown and, as such, it is a part of the executive government. It should conduct itself, in the conduct of litigation, in the manner expected of the executive government. There is an expectation that the government will act and be seen to act as a model litigant. 31. In Cantarella it was stated by Mahoney J: In Eastern Trust Co. v. McKenzie, Mann & Co. Ltd. [1915] A.C. 750, at pp. 759, 760 the position was stated by their Lordships of the Privy Council in general terms: "It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. If there is any difficulty in ascertaining it the Courts are open to the Crown to sue, and it is the duty of the Executive in cases of doubt to ascertain the law, in order to obey it, not to disregard it. The proper course in the present case would have been either to apply to the Court to determine the question of construction of the contract, and to pay accordingly, or to pay the whole amount over to the receiver and to obtain from the Court an order on the receiver to pay the sums properly payable for labour and supplies, as to the construction of which their Lordships agree with the Supreme Court of Nova Scotia. The duty of the Crown in such a case is well stated by Lord Abinger in Deare v. Attorney-General (1835) 1 Y. & C. Ex. 197, at p. 208; 160 E.R. 80, at p. 85. After pointing out that the Crown always appears (in England) by the Attorney-General in a Court of justice, especially in a Court of Equity, where the interest of the Crown is concerned, even perhaps in a bill for discovery, he goes on to say [p85]: "It has been the practice, which I hope never will be discontinued, for the officers of the Crown to throw no difficulty in the way of any proceeding for the purpose of bringing matters before a Court of justice, where any real point of difficulty that requires judicial decision has occurred." This is, perhaps, merely one aspect of what was described by Griffith C.J., in Melbourne Steamship Co. Ltd. v. Moorehead (1912) 15 C.L.R. 333, at p. 342. as "the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary." 32. To not accept as correct the decisions in Kelly and Kingsford Property Developments and yet refuse to appeal and then to apply the law contrary to the decisions in Kelly and Kingsford Property Developments was not the behaviour of a model litigant. To argue that Kelly and Kingsford Property Developments were wrongly decided in MP 888 and in Albert Square was also unreasonable. To argue in the Strata Subdivision Class 1 proceedings that Kelly and Kingsford Property Developments were wrongly decided was unreasonable. 33. The conduct of the litigation by and on behalf of all parties must be examined. The reasonableness of their behaviour must be assessed, in order to decide if costs are to be ordered, and, if so, on what basis: In Ray Fitzpatrick Pty Ltd v Minister for Planning (No 5) [2008] NSWLEC 183 Sheahan J at [39]. On this basis, the Court should order the Council to pay the applicant's costs of the proceedings. The Council has acted unreasonably. The action was only brought about by the Council refusing to accept the correctness of two decisions in Kelly and Kingsford Property Developments. The Court has had to determine the question four times now as recently as in Albert Square NSW Pty Ltd v Randwick City Council [2021] NSWLEC 1401. 34. The Council persuaded Commissioner Horton in MMP 888 to a contrary view of the construction of Clause 4.1A causing a controversy which ought never have arisen. The orderly way to resolve the matter was to appeal the Court's decision or comply with Clause 4.1A as determined by the Court. 35. The Class 4 proceedings arose from a real controversy concerning the meaning of Clause 4.1A. The controversy impacted upon the applicant financially and concerned the applicant's entitlement ever to obtain a consent for strata subdivision of her land. The controversy also concerned other citizens who might seek to obtain consent for strata subdivisions in the R2 Low Density Residential Zone in the City of Randwick relying on Clause 4.1A. They were concluded by each of the parties agreeing (no doubt for different reasons) to dismissal of the Summons without a trial. 36. The applicant has behaved reasonably. The Council has not. It should pay the costs of the proceedings. Alternatively, there should be no order as to costs.

The Council's submissions in reply

1. Mr Astill's reply submissions for the Council were brief. They were in the following terms: Reply to AS4 6. The AS4 seek to argue that the Applicant should escape the default provision of UCPR 42.1 principally on the basis that the Respondent's Conduct has been unreasonable (from AS4 [26] to the end of AS4). 7. The sole basis on which this characterisation is asserted is that the Respondent refused to follow the earlier decisions in Kelly and Kingsford and instead promoted the ratio of the decision in MMP888. 8. The inconsistency of the Applicant's position in this regard is obvious. She asserts that it was reasonable for her to promote the ratio of the decisions in Kelly and Kingsford, but it was unreasonable for the Respondent to argue the contrary based on MMP888. In this regard the Applicant concedes (AS4 [9]) that the law was in an uncertain state. 9. The Court would be unconvinced that the Respondent's conduct was unreasonable or otherwise such that it would be disentitled to a costs order in its favour, for the reasons set out in RS from [7]-[10]. The reasons for the Court refusing to hear the Class 4 proceedings were in no way attributable to anything done or said, or omitted to be done or said, by the Respondent. 10. Whilst it is true that the parties agreed for the Class 4 proceedings to be dismissed by consent by Pain J (see AS4 [20]-[21]) the Respondent made it perfectly clear that it intended to seek costs, and directions were made for that purpose.

Consideration

1. Although at the time Ms Drake commenced her Class 4 proceedings there was a position of conflicting Commissioners' decisions as to the correct interpretation of cl 4.1A of the LEP, authoritative resolution of that issue depended on having an appropriate vehicle for its determination.
2. The form of the Class 4 proceedings commenced by Ms Drake referring to specific plans was capable of being such a vehicle. As originally pleaded, they provided an opportunity for a judicial declaration as to the appropriate interpretation of cl 4.1A of the LEP in the context of those plans. On the other hand, Ms Drake's Class 1 proceedings, had they required to be determined, would have only resulted in a further merit‑derived determination of the issue, to add to the then list (now expanded by Espinosa C's decision in Albert Square NSW Pty Ltd v Randwick City Council [2021] NSWLEC 1401 of merit decisions on the topic (Class 1 decisions by Commissioners and Judges having equal status).
3. Absent either a Class 4 declaration or an appeal on a question of law pursuant to either ss 56A or 57 of the Land and Environment Court Act 1979 (depending on whether the merit decision appealed was that by a Commissioner or by a Judge), interpretation of cl 4.1A of the LEP will remain to be addressed on a merit appeal by merit appeal basis.
4. For present costs application purposes, however, these are abstract issues. The reason is simple. When Ms Drake applied, in April 2021, to turn her Class 4 proceeding from one founded on the specifics of the proposed development on the site to one seeking judicial advice in the abstract, she transmuted her Class 4 proceedings into ones where it was not appropriate to proceed to determination. It was for this reason that I had adopted the course of permitting the reopening of Ms Drake's Class 1 proceedings in order to entertain submissions in those proceedings on the permissibility of her proposed strata subdivision application.
5. As it transpired, that application was doomed to failure because Mr Kelly's proposed dual occupancy (attached) was unacceptable on its merits. That outcome, as earlier noted, rendered Ms Drake's Class 1 appeal futile.
6. The combined result of the lack of success of Mr Kelly's design and Ms Drake's April 2021 decision to amend her Class 4 pleadings to render them inappropriate for determination meant that there was no proper basis upon which I might need to reach a conclusion as to what I considered to be the appropriate interpretation of cl 4.1A of the LEP.
7. For the purposes of determining a costs outcome for Ms Drake's Class 4 proceedings, despite Mr Tomasetti's valiant attempt to submit that it should be otherwise, the necessary termination of Ms Drake's Class 4 proceedings must be regarded as triggering the presumption in r 42.1 of the UCPR without there being any reason to depart from that presumptive position. Put simply, in this regard, Ms Drake's change in pleadings in April 2021 resulted in her own downfall in these Class 4 proceedings.
8. Reaching this conclusion does not require any hypothetical merit determination of any matter arising from cl 4.1A of the LEP. To do so would be contrary to the decision of the High Court in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6.
9. The necessary result is that Ms Drake is to be required to pay the Council's costs of her Class 4 proceedings.

Costs

1. Costs of costs applications in Class 4 proceedings follow the event. As the Council has been successful in its costs application in Ms Drake's Class 4 proceedings, it is appropriate to order that Ms Drake pay the Council's costs associated with this costs' consideration.

Orders

1. The orders of the Court are: 1. The Applicant is to pay the Respondent's costs in Matter No 365534 of 2020; and 2. The Applicant is to pay the Respondent's costs of this costs' consideration in that matter.

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: 16 September 2021