Procedure - Costs - Departing from the general rule - Public duty involved - Matter of general public interest - Successful plaintiff not exempt from paying costs.

R (on the Application of Godmanchester Town Council) v Secretary of State [2005] EWCA Civ 1597; [2006] 2 All ER 960; Downie v Sorell Council [2005] TASSC 74, referred to.

Judgment Number: [2007] TASSC 100

1 The plaintiffs, by action, successfully sought a declaration that certain land owned by the defendant had by dedication and use become a public highway (Howlin v Brinckman [2007] TASSC 59). The action named Mrs Brinckman as the sole defendant. The plaintiffs did not seek to name as parties the Attorney-General or any public authority. During the course of pre-trial procedures, identified interested parties were notified of the existence of the proceedings but none sought to be joined as parties or to take part in a more limited way in the hearing. Significantly the Council of the Municipality of Clarence, the relevant local authority, declined an opportunity to be heard on the matter.

2 The history of the matter, the surrounding circumstances, and the basis on which the declaration was made, are stated in the primary reasons for judgment and require no repetition.

3 The plaintiffs brought the action for personal and commercial gain. They, and other adjoining landowners, already had a right of way over the portion of land owned by the defendant. They wished to subdivide their own land for development and sale. They were permitted to do so, but the number of lots permitted for subdivision was limited if the land over which access was required remained subject to rights of way. A declaration that the land had become a public highway permitted a significant increase in the number of allotments which could be developed and sold, to the financial advantage of the plaintiffs. No criticism is, or ought be, made of either plaintiff in the seeking of a declaration. However the action resulted in the transformation of a limited or series of private rights to a public right to the advantage of the plaintiffs and the detriment of the defendant. In the course of legal argument, counsel for the plaintiffs contended that the action ought not be regarded as akin to a "public interest case", but more as one between the parties. In part he is correct, but the position adopted by the plaintiffs through their counsel reinforces the view that they sought advantage through the existence of a public right.

4 Not content with that financial advantage, the plaintiffs seek an order that the defendant pay their costs of that commercial benefit. They have sought those costs from the date of their action. Such might be the "ethos" of developers, but in cases such as this, developers ought not assume that costs would necessarily follow the event. The plaintiffs were seeking a declaration of an existing public right through usage. In future cases of this nature it might be more prudent for the Court to require the joinder of a public authority to represent the public interests, rather than risk either having no contradictor to a claim of "public right" by a commercial venture, or detriment to another private landowner. A reading of the progress of an English case involving dedication through the Queens Bench Division (R (on the Application of Godmanchester Town Council) v Secretary of State [2004] EWHC 1217 (Admin); [2004] 4 All ER 342) to the Court of Appeal (R (on the Application of Godmanchester Town Council) v Secretary of State [2005] EWCA Civ 1597; [2006] 2 All ER 960), and ultimately the House of Lords [2007] 4 All ER 273) shows that almost every relevant case of precedent cited, relied on in argument, or referred to in the respective reasons for judgment, involved as a party a public or statutory authority or an instrument of State. The existence or loss of a public right was considered as a matter requiring joinder or representation of the public interest by a public body.

5 The defendant had limited options in her response to the action. She had no authority to consent to the action, and in doing so remained susceptible to a costs order. She could decline to take part in the proceedings, still risking a default costs order, or responsibly conduct a case which tested the claim. Her pleadings included:

"7.1 Neither the Defendant, nor any previous registered proprietor of the Defendant's land, has notified the Clarence City Council in writing of the alleged dedication of the Defendant's land, or part thereof, as a public highway;

7.2 The Clarence City Council has not given its approval under seal to the alleged dedication of the Defendant's land, or part thereof, as a public highway;

7.3 In the premises, the alleged dedication of the Defendant's land, or part thereof, as a public highway is:

(a) deemed not to have occurred pursuant to section 7(4) of the Local Government (Highways) Act (Tas) 1982 ('the Act');

(b) of no effect pursuant to section 7(1) of the Act."

6 The defendant could have offered to "donate" or dedicate her land to the public authority, although there has been no evidence at trial whether such an attempt would have been accepted, involve the payment of compensation, or not expose her to cost and expense. In either of the first two courses, this Court would have been deprived of an appropriate contradictor to assist it in its determination.

7 The defendant conducted her case in an appropriate manner, did not prolong or protract the hearing, and made all the necessary concessions which permitted the ready identification of the issues. Her involvement, and the assistance of her counsel, assisted the Court and, I suspect, shortened rather than lengthened the time of the hearing.

8 In R (on the Application of Godmanchester Town Council) v Secretary of State (supra) at 992, Arden LJ stated at par100:

"To conclude that a way has become dedicated to the public may involve the owner of the land in substantial liabilities."

9 I agree with that assessment. The defendant's land was at the end of a "right of way", was in pleasant surrounds, and the declaration will involve increased traffic, many more surrounding houses and occupants, and alter the characteristics of her amenity. To those "liabilities" she is asked by the plaintiff to pay for their privilege.

10 This was not ordinary civil litigation. The action involved the status of a public highway. The proceedings, in the form chosen by the plaintiffs, did, and could, not involve the consent jurisdiction of the Court. Even had the defendant taken no part in the proceedings, this Court was required to be satisfied, by evidence, that the asserted public right existed. There was no evidence at trial that a public authority had been prevented from acquiring the land through an exercise of statutory power. Sale to the developer by the defendant would not have transformed, without more, the existing right of way, already possessed by the plaintiffs, to a public highway.

11 Formal dedication by the defendant required the consent of the municipal council, which declined to take part in the proceedings, and would have resulted in financial advantage to the plaintiffs without necessarily providing compensation to the defendant.

12 The effect of the declaration was to dispossess the defendant of her land without compensation. In such a case, the ordinary rule of costs should not be added to that dispossession and the other significant detriments which she will suffer (see generally Downie v Sorell Council [2005] TASSC 74; Pastrello v Roads and Traffic Authority of New South Wales [2000] NSWLEC 164, 3 August 2000). Cases referred to by counsel for the plaintiffs such as Sorell Council v State of Tasmania (No 2) [2004] TASSC 101, Burnie Port Corporation Pty Ltd v Bank of Western Australia Ltd (No 3) [2003] TASSC 132; (2003) 12 Tas R 325; Strata Corporation No 117066, The Gasworks, 2 Macquarie Street, Hobart v Nine Eleven Tasmania Pty Ltd (No 2) [2007] TASSC 48 have no relevance to this application.

13 The defendant has submitted that the appropriate order is that each party pay their own costs. That is the course which the Court will follow.

14 The application by the plaintiffs is dismissed. The order is that the plaintiffs and defendant pay their own costs of the action. Counsel will be given the opportunity to separately argue the question of costs of this application.