36 The Respondents have been successful in opposing Mr Hooper's Class 4 summons and now both seek their costs. There is no disentitling conduct in relation to the Respondents' conduct of this somewhat protracted litigation, as detailed in the numerous interlocutory steps identified in the chronology to the proceedings. Interlocutory orders were made in relation to the Second Respondent's Notice of Motion dated 8 March 2010 to strike out the APOC (successful), Mr Hooper's application for the Council to provide a statement of reasons (successful) and Mr Hooper's Notice of Motion dated 23 June 2010 seeking to vary the timetable (unsuccessful). Numerous mentions for the making of directions have also been necessary.
Should both Respondents get costs order in their favour?
37 Whether both Respondents should get their costs paid must be considered. It is preferable that only one respondent play an active role in judicial proceedings concerning the challenge to a development consent as it is generally the case that the necessary arguments can be made by one party. The obiter comments of Gummow and Gaudron JJ in Oshlack at [12] that the preferable course for a council to take is not to actively participate in proceedings where a grant of development consent is challenged has been identified in other cases in this Court such as Cutcliffe, inter alia. While obiter, the comments are authoritative and need to be considered firstly in relation to the role of a council as a consent authority and also to ensure that costs of proceedings are reduced through the filing of a submitting appearance of one party where appropriate. In this Court councils do choose to play an active role in defending their decisions in judicial review proceedings and that may be appropriate on occasion. It is not automatic however that they will be awarded their costs if they do so. It is generally preferable that one party file a submitting appearance to avoid unnecessary costs.
38 Here the Council's counsel submitted that it had to continue to play an active role in the proceedings because of the nature of the allegations of fraudulent misrepresentation and misconduct raised in the APOC by Mr Hooper. These were not removed from contention until the second day of hearing in Hooper No 1 when the Court struck out those parts of the APOC which had raised those matters. Further the conduct of Mr Hooper was focussed on the Council and he actively engaged with it in the course of the proceedings through extensive correspondence. That is confirmed by Mr Hooper's submissions which stress that his focus was the Council's decision-making.
39 I agree with these submissions of the Council. A large number of grounds raised in the APOC were struck out including those which raised potentially serious issues concerning fraudulent misrepresentation and misleading conduct by the Council or its officers. Taking at face value Mr Hooper's argument that he included those grounds in the APOC only because order 4 made by Sheahan J required him to do so, he has made a most unfortunate error in including such matters in the APOC if he did not intend to pursue them. It is the responsibility of any litigant before this Court to include in pleadings only matters which they intend to pursue. There was no compulsion in order 4 made by Sheahan J that these matters be included. Such an order is simply intended to ensure that if such matters are to be pursued that they must be articulated. The Court would not compel parties to articulate grounds they do not wish to press. The result of these grounds being included in the APOC is that there were potentially serious matters raised about the Council's behaviour which it considered that it had to respond to. There can be no criticism of the Council that it ought to have known those matters would not proceed at the final hearing, contrary to Mr Hooper's submission to that effect. Until the orders striking out those parts of the APOC were made in Hooper No 1 there was no reason for the Council to consider these matters would be pressed.
40 The Second Respondent took the most active role in presenting submissions in relation to the three remaining parts of the APOC which remained after Hooper No 1. The Council largely adopted these submissions, a sensible course.
41 Mr Hooper is elderly, presently has medical problems and is a pensioner. Means to pay are not a relevant matter to consider when determining whether a costs order ought be made at all. They can be taken into account in relation to the period after which an order can be enforced. Mr Hooper has represented himself throughout and did not appear to have the benefit of legal advice in the lead up to or at the hearing. There have been a number of interlocutory proceedings, detailed above at par 4, which would have caused both Respondents to incur further costs. The circumstances are unfortunate. There is no disentitling conduct suggesting the Respondents ought not be awarded their costs. It is appropriate that both Respondents be awarded all or some of their costs in these circumstances.
Is this public interest litigation?
42 Mr Hooper argues that he should not be ordered to pay any costs as he has brought these proceedings in the public interest, being the interests of the wider community. The principles applied to whether costs ought be awarded in unsuccessful public interest cases have been considered and developed in numerous cases, with Oshlack considered an important starting point. The cases have been comprehensively analysed by Preston J in Caroona. His Honour identified a three step process which he considered enabled a principled exercise of the Court's cost discretion. The first step is to determine whether the proceedings are public interest litigation, if so the second is whether the nature, extent and features of the litigation would ground a departure from the usual costs rules. Consideration of any countervailing factors including relating to the conduct of the applicant which suggests there should be departure from the usual costs rule is necessary in the third step. Caroona provides a useful framework for the assessment of costs in these circumstances, and I applied this approach in Gray.
43 In relation to the first step of whether this is public interest litigation, Caroona identifies at [38]-[46] considerations which Lloyd J identified in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 at [15]. These included whether the public interest was served by the litigation, whether interest was confined to a relatively small number of people, whether the applicant seeks to enforce public law obligations and has the prime motivation of upholding the public interest and the rule of law. Also relevant is whether an applicant stands to gain financially from the litigation.
44 As stated in Caroona at [49], it is not sufficient to lay claim that proceedings are in the public interest, this must be established. There is no reason not to accept that Mr Hooper has engaged in these proceedings without expectation of any personal or financial gain. He appears to hold a genuine concern about the impact of the Council's decision to approve the Second Respondent's DA for a large house in a neighbourhood in Port Stephens. His subjective concerns about the impact of the development does not render this litigation public interest in nature. The issues considered in Hooper No 2 were related to the application of the relevant LEP and the Port Stephens Development Control Plan 2007 (the DCP) in the particular circumstances of this Second Respondent's DA. There appears to be no wider application of the decision the Council made in relation to the operation of its planning instruments. While he claimed in his submissions to be representing the wider community (by way of his membership in the Tomaree Ratepayers and Residents Association) there is no evidence of that. The summons is filed by him as an individual.
45 It is difficult for litigants in person who are not legally represented to differentiate between submissions and evidence. Mr Hooper has argued forcibly in his submissions that he is acting in the public interest and I accept that he considers that he has demonstrated this matter. Unfortunately there is no evidence to support these submissions.
46 Mr Hooper has placed reliance on part of the decision of Pepper J when her Honour refused his application for an interlocutory injunction in separate proceedings and stated that she accepted that there was a public interest in Mr Hooper bringing that application. The whole of the finding of Pepper J in relation to public interest considerations is set out at par 3 above. That statement was made in the context of weighing up where the balance of convenience lies in relation to the grant of an interlocutory injunction. It articulates the fact that the public interest is a broad concept. Her reasoning does not provide a basis for finding that Mr Hooper has undertaken public interest litigation. Weighing up these matters I would not characterise this as public interest litigation.
47 If I had, the nature of the proceedings needs to be considered as part of the second step identified in Caroona. The matters which were ultimately argued before me concerned the height of the proposed building, the number of storeys and whether the side and front setbacks all complied with the relevant LEP and/or DCP. At issue in relation to building height was a factual question of whether cl 19 of the LEP which contained a height limit of 9 m had been complied with. The Council considered that it had and I held there was no legal error in reaching that finding. There was no failure in the application of cl 19 of the LEP. The same finding was made in relation to the other grounds of appeal concerning the LEP. These grounds focussed on the application of the Council's planning instruments to an individual application for development consent by the Second Respondent.
48 As considered at [16] of Gray:
To the extent that it is appropriate or necessary to consider additional factors referred to in the second step in Caroona, five considerations identified in various cases are referred to at [60] as follows:
(a) the litigation raises one or more novel issues of general importance;
(b) the litigation has contributed, in a material way, to the proper understanding, development or administration of the law;
(c) where the litigation is brought to protect the environment or some component of it, the environment or component is of significant value and importance;
(d) the litigation affects a significant section of the public; and
(e) there was no financial gain for the applicant in bringing the proceedings.
49 In this matter no novel questions of application of the relevant LEP or DCP were raised, the matters challenged were within the Council's power and responsibility to determine and the Court did not find any ground of judicial review was upheld in relation to the Council's decision-making. Underpinning a number of Mr Hooper's concerns were merit issues which are not able to be raised in these Class 4 judicial review proceedings. None of the factors in (a) (b) (c) or (d) apply to the proceedings in terms of the evidence before me. I have already accepted that Mr Hooper will not gain financially from the proceedings. These matters suggest that even if I had held that this was public interest litigation the nature of the litigation would not warrant a departure from the usual approach on costs.