Fordham v Fordyce

and went on to say (at 625): "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 costs discretion will usually mean that the court will make no order as to the costs of the proceedings. This approach has been adopted in a large number of cases." 18 Malpass AsJ considered, in effect, that he should apply this approach. 19 Malpass AsJ concluded that the magistrate had made no error and, if he had, it was not of significance in the case. 20 The ground of appeal in which reliance is placed on the indulgence principal is that Malpass AsJ: "erred in failing to determine whether [the Magistrate] had erred in law in holding that the onus was on the [claimants] to prove that their conduct was not unreasonable before the principle that the [opponent] as a party seeking an indulgence ought to pay the [claimants'] costs could be applied." 21 To the extent that this ground asserts that Malpass AsJ failed to make a determination, it is wrong. I have referred to his Honour's express reasoning and finding in this regard. 22 The basis of the claimants' argument is, in effect, that where a person seeks an access order under the Access to Neighbouring Land Act and does not prove that the refusal by the owner of the land to consent to access was unreasonable, the owner is entitled to the costs of the application. This misconstrues s 27. Section 27 merely provides that the Local Court may, when considering the question of costs, have regard to whether the refusal to consent to access was unreasonable. The question of costs remains in the general discretion of the court and the court, in accordance with the general rule, must consider all the circumstances. 23 If the person who has refused the access contends that the refusal is reasonable, and that this should be taken into account in the determination of costs, the onus is on that person to establish the reasonableness of the refusal. Malpass AsJ made no error in this regard. 24 In his oral submissions, Mr Simpkins referred to Nardell Coal Corporation (in liquidation) v Hunter Valley Coal Processing (2003) 178 FLR 400. This case dealt with s 419A of the Corporations Act 2001 (Cth). At 435 [144], Campbell J said that where there was no express statutory provision concerning costs, it was usual for a party seeking an indulgence to pay the costs of the application. Mr Simpkins submitted that this approach should apply in this case and Malpass AsJ was in error in not applying it. In my view, however, the right to access under the Access to Neighbouring Land Act is not an indulgence. The Act provides, rather, an entitlement to the person identified therein to access, under stipulated circumstances, to neighbouring land. Accordingly, I am not persuaded by the argument Mr Simpkins urged on us in this respect. 25 The claimants contended that the Local Court had no jurisdiction to order the trees on their property to be removed. This argument was raised despite the fact that paragraph four of the consent orders made by the magistrate (which embodied the settlement agreement) provided for the removal of trees and the claimants consented to the orders. 26 Mr Simpkins drew attention to certain words that preceded the orders. The words in question are: "The Court notes the Agreement of the parties as recorded below and to the extent if at all it is within the power (which the Respondents do not admit." Mr Simpkins submitted that these words left it open to the claimants to argue the question of jurisdiction. 27 I have difficulty in understanding what these prefatory words convey, particularly as the claimants consented to this agreement being made an order of the court. Irrespective of their true meaning and effect, the claimants' agreement to the opponent having access in the terms contained in the consent orders and to the opponent going on to their land in accordance with these terms are highly relevant to the exercise of the discretion whether or not to grant leave to appeal on this ground. I would add that this question might require determination of factual questions. 28 In all the circumstances, I do not regard it as appropriate that this Court determine the jurisdictional question in a second appeal involving costs alone. 29 The claimants argued that Malpass AsJ did not deal with their arguments that they advanced before the magistrate to the effect that they were entitled to the costs thrown away. They also submitted that the magistrate did not properly deal with those arguments. As I understand the magistrate's reasons, he considered that, because of the absence of evidence before him, he was unable to determine whether unreasonableness on the part of the opponent caused costs to be thrown away, and was also unable to determine the extent of the costs thrown away. Malpass AsJ accepted that this reasoning was open to the magistrate and, having regard to the circumstances of this application (that is, the nature of the appeal sought to be argued and the fact that it is a second appeal), I do not think that it would be appropriate for leave to be granted on this issue. 30 For these reasons, I would not grant leave to appeal both in respect of the appeal sought under s 64 of the Local Courts Act and the appeal sought to be brought in respect of the claimants' claim for relief in the nature of certiorari under s 69 of the Supreme Court Act 1970 (NSW). 31 BASTEN JA: For reasons given by the Presiding Judge, I agree that the application for leave to appeal should be dismissed with costs. I wish to add some further remarks in relation to the jurisdictional issues raised by the complex of legislation involved in what should have been a straightforward matter. 32 These proceedings were commenced with an application to the Local Court under s 40, which is contained in Pt 6 of the Local Courts Act 1982 (NSW). The application sought to invoke the jurisdiction of the Local Court under s 11 of the Access to Neighbouring Land Act 2000 (NSW) ("the Access Act"). 33 The substantive issues in dispute were resolved shortly after the hearing had commenced in the Local Court on 23 May 2005. Consent orders were made the following day, except in relation to costs, on which the parties proceeded to a hearing before the magistrate on 25 May 2005. Magistrate Abood handed down his decision on 26 September 2005, determining that each party should pay his or her own costs. The claimants sought to appeal that decision, first to the Land and Environment Court and, following a rejection of that appeal for want of jurisdiction, to the Common Law Division; the latter appeal was also unsuccessful, Malpass AsJ dismissing the summons and ordering the claimants to pay the costs of the summons. The claimants seek leave to appeal from those orders. 34 The question of costs in the Local Court fell to be considered by the Magistrate pursuant to s 27 of the Access Act set out at [12] above. Section 27(2) identifies certain considerations which the Local Court "may consider", suggesting that they are relevant but not mandatory considerations. Certainly in relation to par (c), that conclusion must be right, as it imposes no restriction at all. However, its inclusion suggests that the matters identified in pars (a) and (b) may have been intended to be mandatory, to the extent that they were relevant. They did not require the Local Court to inquire into the attempt to reach agreement, or the reasonableness of any refusal to consent to access, nor to reach any conclusion in relation to those matters, beyond that which could reasonably be undertaken and determined on the evidence before the Magistrate. If he had rejected either of those matters on the basis that they were irrelevant and should not be taken into account, that might have involved an error of law. However, he did not do that. Rather, the errors of law identified by the claimants were threefold and involved the failure of the Magistrate, first, to consider and apply "the indulgence principle"; secondly, to take into account that an order for destruction of trees might be beyond power and, thirdly, to take into account the changed nature of the applications. 35 In relation to each of these matters, I agree with the comments of Ipp JA. I would only add, in relation to Nardell Coal Corporation Pty Ltd (In Liq) v Hunter Valley Coal Processing Pty Ltd [2003] NSWSC 642; (2003) 178 FLR 400, that the provisions of s 419A of the Corporations Act 2001 (Cth) involved a power of the Court to excuse the controller of a corporation from a liability for payment of certain amounts which were imposed by the section: see sub-ss 419A(2) and (7). That placed the matter significantly outside the scope of a case such as the present. I agree with his Honour that this is not a case where the respondents were seeking some indulgence in relation to a liability to which they were otherwise subject. 36 In any event, so far as the discretion to award costs is concerned, the provisions of s 27 provided an unfettered discretion to the Magistrate. There is no general rule that costs should follow the event. Nevertheless, the outcome of the proceedings was no doubt a relevant consideration; see Hunter Development Brokerage Pty Ltd v Cessnock City Council [No. 2] [2006] NSWCA 292 at [50]. 37 The next question concerned the appeal provisions relevant to the costs order. If there had been a challenge to an access order made by the Local Court, there was a provision for appeal on a question of law to the Land and Environment Court: Access Act, s 31(1). Two questions arise in that respect: first, did s 31 extend to a costs order and, secondly, was that appeal provision exclusive of any power to appeal which might have arisen under the Local Courts Act. 38 In relation to the first question, and assuming there had been a challenge in relation to an access order, it seems clear as a matter of necessary intendment that the powers of the Land and Environment Court would extend to a costs order made in the Local Court. It would be irrational to confer on the Land and Environment Court the power to reverse a substantive order made in the Local Court, but not to vary a costs order. 39 However, the position may be different where that jurisdiction of the Land and Environment Court cannot be invoked, because there is no question of law with respect to a decision to grant or not grant an access order. That I understand to have been the basis of the decision in Fordham v Fordyce [2006] NSWLEC 109 at [36]-[38] (Preston CJ) a decision which is not challenged. Where the Land and Environment Court jurisdiction is sought to be invoked only in relation to the question of costs, the question arises as to whether the jurisdiction conferred by s 31 is exclusive with respect to appeals in relation to access orders and no other jurisdiction is available. It is possible that there is no power of appeal against a costs order by itself. 40 The alternative jurisdiction, if any, must be found in the Local Courts Act. Civil jurisdiction is conferred on the Local Court in its General and Small Claims Divisions in relation to money claims, proceedings to recover goods and consequential damages: s 65. Pursuant to Pt 7, which contains ss 65 to 79, a right of appeal to the Supreme Court is conferred, but only as of right in relation to a decision of the General Division which is said to be "erroneous in point of law": s 73(1). An appeal from a costs order is only available by leave of the Supreme Court: s 74(2)(c). On the other hand, those provisions only apply in relation to proceedings under Pt 7 and the present proceedings invoked the jurisdiction of the Local Court under Pt 6. (The two Parts are mutually exclusive: s 36(1)(d).) 41 The right of appeal under Pt 6 is contained in s 64 which relevantly provided: " 64 Appeals (1) In relation to any order arising from an application notice under this Part: … (c) an appeal to the Supreme Court may be made in accordance with Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 , in the same way as such an application or appeal may be made in relation to a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 . (1A) An application or appeal may not be made under subsection (1) in relation to an order referred to in that subsection if the making of such an application or appeal is prohibited by the Act or law pursuant to which the order is made. (2) If any other Act: (a) provides for an appeal to the District Court against an order of a Magistrate or Justice under that Act, or (b) provides for an appeal against such an order without identifying to which court such an appeal is to be made, such an appeal is to be made to the District Court in accordance with Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001 in the same way as an appeal under that Part may be made in relation to a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 . … (4) The Crimes (Local Courts Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act." 42 Section 64 thus makes special provision in relation to appeals provided by "any other Act", but only where such an appeal is to the District Court, or to another Court which is not identified which is then taken to be an appeal to the District Court, in each case the appeal being under the relevant provision of the Act now known as the Appeal & Review Act: s 64(2). The relevant provisions of the Appeal & Review Act in relation to appeals to the Supreme Court make separate reference to appeals by defendants and by prosecutors; which division is intended to apply under the Local Courts Act is unclear. So far as the defendants are concerned no distinction is made between convictions and sentences. Rather, s 52(1) of the Appeal & Review Act provides that a person who has been convicted or sentenced by a Local Court may appeal to the Supreme Court, "but only on a ground that involves a question of law alone". The section also envisages that there will be rules of court which prescribe a period within which the appeal must be made: s 52(2). Those rules appear to be the rules found in Pt 51B of the Supreme Court Rules, r 6 of which mandates that an appeal must be instituted within 28 days after the material date, in this case the decision of the Magistrate. 43 Otherwise, leave is required in respect of an appeal against conviction or sentence on a question of fact or mixed law and fact: s 53(1). These appeal rights have no ready application to proceedings under Pt 6 of the Local Courts Act. Why s 64 did not set out the relevant provisions, with necessary changes making them appropriate to such proceedings as fall within Pt 6, or indeed why s 64 did not simply provide an appropriate right of appeal as appears in ss 73 and 74 in Pt 7, is obscure. 44 Putting these matters to one side, it may be noted that the Land and Environment Court is a superior court of record whose judges have the same status and precedence as judges of the Supreme Court: Land and Environment Court Act 1979 (NSW), ss 5(1) and 9(2). The jurisdiction to deal with proceedings under ss 29, 30 and 31 of the Access Act is conferred by s 19(e2) of the Land and Environment Court Act. Although there is no withdrawal of the jurisdiction of the Supreme Court to deal with such proceedings (compare s 71), it would be surprising if the deliberate conferral of jurisdiction under the Access Act was intended to involve a concurrent jurisdiction with that of the Supreme Court, under the Local Courts Act. My tentative view is that the express power of appeal granted under the Access Act was intended to be exclusive of the rights of appeal in relation to applications under the Local Courts Act, with the result that an appeal lay only to the Land and Environment Court. Whether such a right of appeal lay in relation to a question of costs alone need not be determined but the issue was, as I have noted, decided by the Land and Environment Court which held there was no such appeal and that decision has not been challenged. 45 Assuming that a right of appeal to the Supreme Court did exist in relation to the costs order made by the Magistrate, the next question is whether leave should have been granted by the Associate Judge to appeal out of time. There would be no reason to grant leave to appeal in relation to a costs order made in the Local Court absent a question of law, or other issue which gave rise to a matter of general importance in relation to the administration of justice in that Court. No such issue has been identified in the present case and, as the presiding Judge has explained, no legal error is demonstrated in the manner in which the Magistrate dealt with the question of costs in the exercise of his unfettered discretion. 46 That being so, it follows that no relevant error has been identified of a kind which would invoke the powers of this Court under section 69 of the Supreme Court Act 1970 (NSW). I do not think it is necessarily an abuse of process for the claimant to proceed by way of an application for leave to appeal and an application for judicial review. There are, it is true, comments to that effect in the decisions of this Court in Meagher v Stephenson (1993) 30 NSWLR 736 at 738-739; and Hill v King (1993) 31 NSWLR 654. However, the comments in the former case in relation to abuse of process envisage that the purpose of the application for judicial review was to by-pass the prescribed statutory leave requirement. See also Hill v King at 656-657. 47 However, where concurrent steps are taken because there is some doubt as to the jurisdiction of the Court under one head of jurisdiction or another, or as to which Court has jurisdiction, there may be no abuse of process in the dual engagement of jurisdiction. That may be seen from the decision of this Court in New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) ATR 602 at [11] and [13] in the judgment of the Chief Justice, Meagher and Sheller JJA agreeing with his Honour. It may also be seen from the judgment of Sperling J in ASIC v Farley (2001) 51 NSWLR 494 at [24] and [25]. However, where two different heads of jurisdiction are sought to be invoked, it may be necessary for the drafter of the summons to pay attention to the possibility of different grounds being relevant in relation to the application for review and the appeal. Such attention was not paid in the present summons. It may also be necessary to join the tribunal against which judicial review is sought: see, albeit in a Constitutional context, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 esp at [42]-[43] (McHugh J), [91] (Gummow J), [153] (Kirby J) and [180] (Hayne J). However, nothing turns on these matters for present purposes. 48 In my view the application under s 69 was appropriately dismissed by the Malpass AsJ and the application for leave to appeal against that decision, there being no suggestion that an appeal lay as of right, should also be dismissed with costs. 49 YOUNG CJ in Eq: I agree with what has been said by Ipp JA and generally with the further comments of Basten JA. I would like to make some short comments of my own. 50 Mr Simpkins, for the claimants, has put considerable store on what he has called "The Indulgence Principle", by which he means that, where a person seeks an indulgence of a court, that person should pay the opponent's reasonable costs unless the latter was based unreasonably. As I stated during argument, I doubt whether there is such an overarching principle. In saying this I do not doubt that in various standard situations, particularly in applications in the Equity Division, a person seeking a boon pursuant to statute or general rules of equity normally needs to pay the costs. However, I doubt whether one can conflate those cases into some overarching principle. 51 Mr Simpkins relied on what Campbell J said in Nardell Coal Corporation v Hunter Valley Coal Processing (2003) 178 FLR 400 particularly at 435-436. However, the illustrations given by Campbell J in that case do not convince me that there is some usual principle which is applied unless it is inappropriate to do so in a particular case. It may be that there is such a principle in cases under the old Two Guinea Rule in equity where applicants seeking to modify restrictions imposed by restrictive covenants had to tender two guineas to the other side so the opposing solicitor could investigate the case. It may be that there is some standard guideline in the exercise of discretion in other cases, but I do not think one can say there is an overarching principle known as "The Indulgence Principle" which is to apply unless it is inappropriate. 52 The other matter that I wish to mention is that I am not convinced that in any event it is proper to deal with this application, an application under the Access to Neighbouring Land Act 2000, as one where the applicant is seeking an indulgence. Indeed, I do not accept that this is the correct way to approach this particular Act. 53 It is true, as Mr Simpkins points out, that under the general rule there was no right to enter a neighbour's land even if there was the direst emergency requiring access. The commercial effect of that is that the person I might call the dominant owner could demand an exorbitant licence fee for access or alternatively the person requiring access had to trespass and pay damages. 54 The present Act together with other provisions that came in about the same time, such as s 88K of the Conveyancing Act 1919, has now set up a regime to alter the balance of the interests of the owner requiring access and the dominant owner in the interests of the community generally. Under this regime, where it is in the public interest, particularly in situations where there is a closely settled area, buildings can be properly maintained and there can be appropriate urban renewal by sensible give and take between adjoining owners. 55 The statute encourages people to negotiate in these sorts of situations and to make reasonable efforts to reach agreement: that is set out in s 11 of the Access to Neighbouring Land Act. If they cannot reach agreement then, in the ordinary course, a court determination by a magistrate will resolve the dispute. The magistrate will then consider under s 27 when making an order for costs, the fact that an indulgence is being sought (in the sense that the applicant is seeking to limit the dominant owner's ordinary right to land) but also the matters specifically set out in the section, ie, attempts by the parties to reach agreement and whether the refusal to consent was reasonable or unreasonable. 56 All these matters together with any other matter that the court thinks fit are taken into the mix to see whether it is proper to make an order for costs one way or the other. Considering the way in which the Act is structured, it is not to be construed as the owner requiring access seeking some sort of indulgence. Nor, if there, indeed, is an overarching indulgence principle, that that is the dominant matter to be considered (unless it is inappropriate to do otherwise) when considering costs under s 27(2). 57 Thus, I agree that leave to appeal ought to be refused.

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