Hunter Development Corporation v Save Our Rail NSW Incorporated

Court of Appeal (NSW)|2016-09-01|Before: Beazley P, Macfarlan JA, Meagher JA

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 People with Disability Australia Inc v Minister for Disability Services [2011] NSWCA 253 Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 Prineas v Forestry Commission of NSW (1984) 53 LGRA 160 Re Judiciary and Navigation Acts (1921) 29 CLR 257 Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Ruddock v Vadarlis (2001) 115 FCR 229; [2001] FCA 1865 Category: Consequential orders (other than Costs) Parties: Hunter Development Corporation (Appellant) Save Our Rail NSW Incorporated (First Respondent) The Minister administering the Transport Administration Act 1988 (Second Respondent) Rail Corporation New South Wales (Third Respondent) Transport for New South Wales (Fourth Respondent) Representation: Counsel: T Robertson SC; J Lazarus (Appellant) S Prince (First Respondent) A Galasso SC; C Norton (Second, Third and Fourth Respondents)

Solicitors: Lindsay Taylor Lawyers (Appellant) Hunter Family Law Centre (First Respondent) Clayton Utz (Second, Third and Fourth Respondents) File Number(s): 2015/1116 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: Save Our Rail NSW Inc v State of New South Wales by the Minister administering Transport for New South Wales [2014] NSWSC 1875 Date of Decision: 24 December 2014 Before: Adams J File Number(s): 2014/372752

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[This headnote is not to be read as part of the judgment] On 24 December 2014, Adams J made declarations to the effect that the Hunter Development Corporation (HDC) was a "rail infrastructure owner" within the meaning of the Transport Administration Act 1988 (NSW), s99A. The consequence was that, without an Act of Parliament, HDC could not undertake the proposed removal of certain railway infrastructure at Newcastle. An appeal was heard on 15-16 July 2015. On 9 September 2015, whilst judgment in the Court of Appeal was reserved, the Transport Administration Amendment (Closure of Railway Line at Newcastle) Bill 2015 (NSW) was introduced to authorise "a rail infrastructure owner" within the meaning of the Act to close the public railway line running from Wickham to Newcastle. The Bill was passed by the New South Wales Parliament on 14 October 2015, and received assent on 22 October 2015. The Court was made aware that the legislation had been passed, but not of the introduction of the bill into Parliament. Nor was the Court made aware of communications between the parties about having the matter relisted for further submissions. On 10 November 2015, the Court delivered its principal judgment allowing the appeal and setting aside the declarations made by Adams J on 24 December 2014. Save Our Rail Incorporated (Save Our Rail), the plaintiff at first instance and first respondent on the appeal, was ordered to pay the costs of HDC, the Minister administering the Transport Administration Act, Rail Corporation New South Wales and Transport for New South Wales. By notice of motion filed on 24 November 2015, Save our Rail sought orders pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) setting aside the principal judgment and the orders of 10 November 2015. The principal issues arising on the notice of motion were as follows: (i) whether, in light of the supervening legislative enactment, the appeal had been rendered moot such that the Court impermissibly delivered an "advisory opinion"; (ii) whether, in light of the supervening legislative enactment and Save Our Rail's purported pursuit of the public interest, the disposition of costs on the appeal should have been such that the parties were to bear their own costs.

In relation to (i): (1) Where there remains an outstanding issue as between the parties, the determination of appellate proceedings cannot be characterised as merely advisory in the sense of an abstract declaration of law divorced from any attempt to administer it. [27]-[38] Re Judiciary and Navigation Acts (1921) 29 CLR 257; Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; [1991] HCA 53; Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; [1998] HCA 5; North Ganalanja Aboriginal Corp v State of Queensland (1996) 185 CLR 595; [1996] HCA 2; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39; Momcilovic v R (2011) 245 CLR 1; [2011] HCA 34; (2) Where, on appeal, it becomes unnecessary to resolve the substantive matter in dispute because of some supervening event or circumstance, but there remains a live issue as to the costs at first instance, it may be appropriate to proceed to full determination of the matter so that the question of costs at first instance may be resolved. [40]-[46] Prineas v Forestry Commission of NSW (1984) 53 LGRA 160; Leibler v Air New Zealand Ltd (No 2) (1998) 2 VR 525; Elders Pastoral Ltd v Bank of New Zealand [1990] 3 NZLR 129.

In relation to (ii): (3) The characterisation of proceedings as 'public interest litigation' does not warrant departure from the usual order as to costs. Rather, it is necessary to identify some additional factor or circumstance justifying departure from the usual order as to costs. [67]-[73] Botany Bay City Council v Minister for Local Government (No 2) [2016] NSWCA 127; Hastings Point Progress Association Inc v Tweed Shire Council (No 3) (2010) 172 LGERA 157; [2010] NSWCA 39; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) (2011) 280 ALR 91; [2011] FCAFC 84; Australian Conservation Foundation v Forestry Commission (No 2) [1988] FCA 144; Kindimindi Investments Pty Limited v Lane Cove Council (2007) 150 LGERA 333; [2007] NSWCA 38; Ruddock v Vadarlis (2001) 115 FCR 229; [2001] FCA 1865 (4) The supervening enactment of legislation concerning the subject matter of appellate proceedings will not necessarily disentitle a successful appellant from an order for their costs in circumstances where there remained outstanding issues to be determined, the proceedings have already been heard and it is still possible to discern a "clear winner". [74]-[79] ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270; Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6; Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; [1993] FCA 401; Kiama Council v Grant [2006] NSWLEC 96

Judgment

BEAZLEY P: On 10 November 2015, the Court delivered its principal judgment in this matter: Hunter Development Corporation v Save Our Rail NSW Inc [2015] NSWCA 346. The Court made orders, inter alia, setting aside the declaration made by Adams J on 24 December 2014 in which his Honour declared that Hunter Development Corporation (HDC) "is a rail infrastructure owner within the meaning of 99A of the Transport Administration Act 1988 (NSW)": Save Our Rail NSW Inc v State of New South Wales [2014] NSWSC 1875.
The effect of the declaration made by Adams J was, as his Honour explained in his judgment at [27], that without an Act of Parliament, HDC could not undertake the proposed removal of certain railway tracks and other rail infrastructure. In ordering that the declaration made by Adams J be set aside, this Court held that the acquisition of the railway tracks and other rail infrastructure did not make HDC a "rail infrastructure owner": principal judgment [89]-[94]. The effect of that finding was that an Act of Parliament was not necessary in order for HDC to undertake the removal of the railway tracks and rail infrastructure concerned.
Orders were also made that Save Our Rail NSW Inc (Save Our Rail) pay the costs at first instance and on appeal of HDC and of the Minister, Rail Corporation New South Wales and Transport for New South Wales (the Rail Parties).

Relevant background

The appeal against the declaration of Adams J was heard on 15-16 July 2015. On 9 September 2015, whilst judgment in this Court was reserved, the Transport Administration Amendment (Closure of Railway Line at Newcastle) Bill 2015 (NSW) was introduced into Parliament. The object of the legislation proposed by the Bill was to amend the Transport Administration Act to authorise "a rail infrastructure owner" (within the meaning of the Act) to close the public railway line that runs from Wickham to Newcastle: see Explanatory Note and long title to the proposed Act; see also s 3 as enacted. The Bill was passed by the New South Wales Parliament on 14 October 2015, and received assent on 22 October 2015. For convenience, the Transport Administration Amendment (Closure of Railway Line at Newcastle) Act 2015 (NSW) will hereafter be referred to as the Amending Act.
The solicitors for the Rail Parties, Clayton Utz, brought the Bill to the attention of the solicitors for Save Our Rail, Hunter Family Law Centre, on 9 September 2015. On 15 September 2015, Hunter Family Law Centre responded to Clayton Utz, suggesting that, inter alia, the Bill was "wholly inconsistent" with the submissions of the Rail Parties to this Court on the appeal and that this change of position ought to have been brought to the attention of the Court at the time the Bill was introduced. The solicitors for Save Our Rail pointed to various clauses of the New South Wales Government's Model Litigant Policy for Civil Litigation, including cl 3.2(h), which provides that a government agency is not to pursue an appeal if it is unlikely to succeed unless the appeal is pursued in the public interest.
The solicitors for the Rail Parties wrote a lengthy letter dated 18 September 2015 in response. They pointed out that the question in issue before the Court was whether HDC's proposed activities contravened the Transport Administration Act, s 99A. They refuted the suggestion that should the Bill be passed into law that would constitute "a concession that the submissions advanced by the Rail Parties on appeal [did] not correctly characterise the existing legal position".
The solicitors for the Rail Parties also stated that it would be premature to advise the Court of the Bill, and that there would be no utility in doing so: "… unless and until the legal position is such that the Court's current consideration of the appeal would be proceeding on the basis of a legal environment which no longer exists."
The letter also asserted that, if anything, it was Save Our Rail's cross-appeal, which sought to restrain the compulsory acquisition of the relevant land by HDC, rather than HDC's appeal, that would be rendered futile if the Bill became law. Finally, the letter refuted any suggestion that the Rail Parties were in breach of their obligations as model litigants.
By email dated 16 October 2015, the solicitors for the Rail Parties wrote to the solicitors for Save Our Rail advising that the Bill had been returned by the Legislative Council to the Legislative Assembly without amendment and was awaiting assent. The solicitors for the Rail Parties suggested that the Court be informed of the passage of the legislation by letter in the following relevant terms (the proposed letter): "The parties consider that it is appropriate that the Court be made aware of the passage of the Bill, having regard to the matters that were raised on appeal."
The solicitors for Save Our Rail responded on the same day suggesting that a paragraph be added to the proposed letter in the following terms: "The first respondent [Save Our Rail] seeks that this matter be re-listed before a Judge of this Court to make appropriate directions, so the parties may ventilate any issues that may arise as a consequence of the passage of the legislation". The solicitors for Save Our Rail requested a response to that suggestion "as soon as possible".
The solicitors for the Rail Parties proposed an amendment to that suggestion nominating dates in the letter that were suitable to the parties should the Court wish to hear additional submissions given the introduction of the legislation. Over a series of emails late on the afternoon of 16 October 2015 and early on 19 October 2015 attempts were made to co-ordinate dates between the Rail Parties, HDC and Save Our Rail. Save Our Rail advised of its counsel's availability. However, there were difficulties in obtaining dates for counsel for HDC.
There were then two emails as between the solicitors for the Rail Parties and the solicitors for HDC, in which the solicitors for HDC stated that they would not like the matter listed if HDC's preferred counsel could not appear and sought an immediate response from the solicitors for the Rail Parties. The solicitors for the Rail Parties responded that "… in these circumstances, we might need to send the letter without dates, just to get something off".
Neither of these emails were copied to the solicitors for Save Our Rail, but an email some minutes later was forwarded by the solicitors for the Rail Parties to the respective solicitors for HDC and Save Our Rail, stating that they intended to communicate to the Court in the terms of the proposed letter, with no reference to having the matter relisted for further submissions.
On 19 October 2015, the solicitors for the Rail Parties wrote to the Court in the form of the proposed letter.
The consequence was that although the Court was aware that the legislation had been passed, it was not aware of the communications between the parties about having the matter relisted and proceeded to finalise its principal judgment for delivery on 10 November 2015. It was stated, at [122] of the principal judgment, that as at the date of the receipt of this information, the Court's judgment was in an advanced state of preparation. The Court stated, at [122], that the passage of the legislation had rendered its decision in the matter "moot except as to costs".
On 10 November 2015, after short submissions from all parties, the Court determined it appropriate to deliver its decision. As is recorded in the transcript of that day: "HER HONOUR: We have decided that the appropriate course is, in circumstances where … the appeal is not withdrawn that we should publish our reasons and make the orders and leave it to the parties to make whatever applications they might wish to … under [Uniform Civil Procedure Rules 2005 (NSW), r] 36.16."
I would only pause to note at this stage that the matter should have been brought to the attention of the Court, at the latest when assent was given to the Bill. It would have been preferable, however, for the Court to have been immediately advised of the Bill itself having been introduced into Parliament.

Save Our Rail's notice of motion

On 24 November 2015, Save Our Rail filed a notice of motion pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.16(3A) in which it sought the following orders: "(1) That the Judgment of Hunter Development Corporation v Save Our Rail NSW Incorporated [2015] NSWCA 346, entered on 10 November 2015 be set aside. (2) Orders 1-6 made by the court on 10 November 2015 be vacated and in lieu thereof the following orders be made: 1. The appeal be dismissed 2. The Cross-appeal be dismissed 3. Each party pay their own costs of the appeal and the cross appeal."
There were thus two issues raised by Save Our Rail's notice of motion. First, whether this Court should set aside the principal judgment. Secondly, the appropriate orders as to costs of the appeal. The first of these issues raised the following sub-issues: 1. Was the principal judgment merely an advisory opinion and thus not within the power of the Court? 2. If the principal judgment was not an advisory opinion, did it nonetheless determine matters that were no longer in dispute such as to render the Court's determination moot? 3. If the principal judgment was not 'moot' in the sense that there remained matters in issue, should the Court, in the exercise of its discretion, have delivered judgment or should it have refrained from doing so?

Save Our Rail's submissions

Save Our Rail submitted that the principal judgment should be set aside because "[i]t is not the role of the court, when there is no longer a controversy between the parties, to decide a matter". In this regard, Save Our Rail cited the statement in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79] that the "essence of judicial power is the determination of disputes between parties". Save Our Rail also referred to Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55 as authority for the proposition that the Court should not determine an appeal which would have "no foreseeable consequences for the parties". Save Our Rail submitted that at the time this Court delivered the principal judgment, "there was no longer any dispute between the parties" because, regardless of the proper construction of s 99A of the Transport Administration Act, "the [Amending Act] had the effect of dissolving any dispute between the parties". It followed on this submission that as there was no continuing controversy between the parties the judgment could have no relevant effect.
Save Our Rail submitted that "[b]y continuing to deliver judgment, despite the fact that the proceedings had become moot, the court has delivered an advisory opinion". Save Our Rail pointed out that the High Court has recognised on a number of occasions that "courts do not have the power to deliver advisory opinions": Re Judiciary and Navigation Acts (1921) 29 CLR 257; Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; [1991] HCA 53; North Ganalanja Aboriginal Corp v State of Queensland (1996) 185 CLR 595; [1996] HCA 2; Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; [1998] HCA 5.
Save Our Rail acknowledged that there is a recent line of authority to the effect that, in some circumstances, the Court may still deliver judgment in a matter which was regularly commenced but which has become moot due to a change of circumstances during the course of the proceedings: see People with Disability Australia Inc v Minister for Disability Services [2011] NSWCA 253; Jardine and Jardine Investments Pty Ltd v Metcash Ltd [2011] NSWCA 409; Attorney-General (NSW) v XY [2014] NSWCA 466. By way of formal submission, Save Our Rail submitted that this line of authority was inconsistent with Re Judiciary and Navigation Acts but did not seek to have the relevant decisions of this Court overturned. The Court understands Save Our Rail's submission to involve a reservation of its right to raise this argument should it decide to seek special leave to appeal to the High Court. In any event, Save Our Rail submitted that the principles developed in those cases in respect of the circumstances in which it is appropriate to depart from the normal rule on advisory opinions do not apply to the circumstances of this case.

HDC's submissions

HDC disputed the underlying premise of Save Our Rail's application "that the appeal was rendered moot as a result of the Amending Act". HDC submitted that the Amending Act "does not impact on the declaration and orders made by the primary judge", and that there are continuing consequences under the Transport Administration Act of the declaration concerning the status of HDC as a "rail infrastructure owner". HDC submitted that the Amending Act "leaves untouched the cause of action" and "says nothing as to the controversy on appeal, which is HDC's right to discharge a constraint on its action in relation to its property". HDC further submitted that: "… the appeal is not moot because the costs orders made by the primary judge would otherwise require HDC and the Rail Parties to pay Save Our Rail's costs of the proceedings below, which could hardly be considered a just outcome, given that the Court has determined that its claim should in fact have failed."
This submission was a reference to the fact that the orders sought by Save Our Rail in its notice of motion did not extend to the declaration or the costs order made by Adams J. HDC submitted, alternatively, should the Court find that the appeal was moot, that it was open to the Court, in its discretion, to deliver judgment. HDC submitted that the Court had jurisdiction, and it was a correct exercise of discretion, to determine the appeal in circumstances where it was regularly commenced but rendered moot by a change in circumstances. HDC further submitted that the no advisory opinion rule arising from Re Judiciary and Navigation Acts does not directly translate to the exercise of non-federal jurisdiction, and that there was nothing in this case amounting to the exercise of a function incompatible with or repugnant to the status of this Court as a repository of federal jurisdiction in the sense of the principles in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 and Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1.

The Rail Parties' submissions

The Rail Parties also submitted that the Amending Act did not render the appeal moot and that the principal judgment should not be characterised as an advisory opinion. On the Rail Parties' submission, the Amending Act "puts the lawfulness of the truncation of the Sydney-Newcastle Rail Line beyond question" but "says nothing about the status of [HDC] as a rail infrastructure owner". The Rail Parties argued that "the declaration in the Court below as to that status would have continued to enure against HDC, with all the statutory consequences that flowed from that status". The Rail Parties further submitted in relation to the appeal being moot that "[t]he costs below and on appeal remained live" and that "determination of the substantive issues" was critical to the question of costs.
The Rail Parties submitted that the determination of the appeal "is likely to affect other cases, particularly given the potential implications that may follow from application of the reasoning below to other sales of former rail assets". It was also submitted that the determination of the appeal "has broader application to the question of the operation of the prohibition in s 99A of the Transport Administration Act".

Did this Court impermissibly deliver an advisory opinion?

Save Our Rail's primary submission was that, having regard to the passage of the Amending Act, this Court impermissibly delivered an advisory opinion. In Re Judiciary and Navigation Acts, the High Court, in the context of the constitutionally mandated separation of powers in the federal arena, held at 266 that the legislature could not authorise the High Court to make a declaration of law divorced from any attempt to administer the law. Their Honours stated, at 266-267: "… we can find nothing in Chapter III. of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved."
The principle is now well-established. Thus, in Mellifont v Attorney-General (Qld), the question was whether the High Court had jurisdiction to hear an appeal from the Court of Criminal Appeal of Queensland in respect of a reference to that Court by the Attorney-General of a point of law that arose during a trial at which the accused was discharged. The issue was whether the decision of the Court of Criminal Appeal was a judgment, decree, order or sentence within the meaning of s 73 of the Constitution. The majority, comprising Mason CJ, Deane, Dawson, Gaudron and McHugh JJ, took the view that the decision in question could be "distinguished from the abstract declaration sought by the Executive Government in In re Judiciary and Navigation Acts": at 305. Their Honours, at 303, identified two critical concepts in the reasoning in Re Judiciary and Navigation Acts in relation to the identification of advisory opinions not within federal judicial power: "One is the notion of an abstract question of law not involving the right or duty of any body or person; the second is the making of a declaration of law divorced or dissociated from any attempt to administer it."
The advisory opinion in Re Judiciary and Navigation Acts was described in Mellifont as having been "academic, in response to an abstract question, and hypothetical in the sense that it was unrelated to any actual controversy between parties": at 305.
The same approach was taken in Director of Public Prosecutions (SA) v B where the plurality (Gaudron, Gummow and Hayne JJ), observed, at [8], that "[i]t must now be accepted that the answers to questions reserved for consideration after an acquittal may be the subject of appeal to this Court", a proposition founded in the "relationship between the question reserved and the trial" in question. In North Ganalanja Aboriginal Corp v Queensland Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ observed, at [13], that the delivery of advisory opinions by the High Court would be "beyond the constitutional empowerment of [the] Court in its appellate as in its original jurisdiction".
Similarly, in Coleman v Power, in a passage upon which reliance was placed by Save Our Rail, McHugh J made the following observations at [79]: "The only power with which this Court is invested is judicial power together with such power as is necessary or incidental to the exercise of judicial power in a particular case. The essence of judicial power is the determination of disputes between parties. If parties do not wish to dispute a particular issue, that is their business. This Court has no business in determining issues upon which the parties agree. It is no answer to that proposition to say that this Court has a duty to lay down the law for Australia." (emphasis added)
Although there is no strict constitutionally-mandated separation of powers in the State sphere, the powers of State Supreme Courts are not at large, and are constrained insofar as is necessary to preserve the status of the State Supreme Courts as repositories of federal jurisdiction: see Kirk v Industrial Relations Commission especially at [96].
Momcilovic v R (2011) 245 CLR 1; [2011] HCA 34 concerned the Charter of Human Rights and Responsibilities Act 2006 (Vic), s 36 of which purported to empower the Supreme Court of Victoria to make declarations to the effect that a statutory provision cannot be interpreted inconsistently with a human right. The declarations themselves having no effect upon the validity of the impugned legislative provision, or on the legal rights of any person, the question arose as to whether the function conferred on the Supreme Court of Victoria was incompatible with the institutional integrity of that Court as a repository of federal judicial power.
The High Court by majority (Gummow, Hayne, Heydon, Crennan and Kiefel JJ), set aside the declaration made by the Victorian Court of Appeal. Gummow, Hayne and Heydon JJ did so on the basis that the making of declarations of incompatibility was incompatible with the institutional integrity of the Supreme Court of Victoria. At [180] of his judgment, Gummow J set out the following passage from the decision of the High Court in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [47]: "Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude." Gummow J concluded, at [188], that "[t]he practical operation of s 36" was "incompatible with the institutional integrity of the Supreme Court". Hayne J expressed agreement with these aspects of the reasoning of Gummow J: see [280].
Heydon J expressed the following views, at [457]: "When the court makes a s 36 declaration it is not making a 'declaration of right'. It is not exercising judicial power. A s 36 declaration is merely advisory in character. It does not declare any rights of the parties. It decides nothing … The work of the Supreme Court of Victoria, sitting as such, is limited to the judicial process. The power to make a s 36 declaration takes the Supreme Court of Victoria outside the constitutional conception of a 'court'."
The question thus to be determined where it is alleged that a court's determination constitutes an "advisory opinion" in the sense discussed above is whether the court, in making its determination, was engaged in the adjudication of a dispute or some question or issue between the parties to the suit.
In the present case, the principal judgment was given in the context of a controversy between the parties brought by way of an appeal. Both the proceedings at first instance and the appeal were regularly commenced and concerned a dispute in respect of which a judicial determination was sought.
More fundamentally, as I next explain, notwithstanding the passage of the Amending Act, there remained outstanding between the parties at least the question of costs of the proceedings at first instance. For that reason alone, the appeal cannot, therefore, be described as concerning only "an abstract question of law not involving the right or duty of any body or person" nor "the making of a declaration of law divorced or dissociated from any attempt to administer it": see Re Judiciary and Navigation Acts at 266-267 and Mellifont at 303. HDC and the Rail Parties also contended that there were other issues relating to the declaration made by Adams J that HDC was "an infrastructure owner" and the proper construction of s 99A of the Act that required the Court's determination and accordingly the principal judgment was not a mere advisory opinion.

Was there a controversy between the parties that remained to be decided?

Save Our Rail submitted that even if the principal judgment was not an advisory opinion, nonetheless this Court ought not to have delivered judgment in circumstances where there was no longer a controversy to be decided by the Court having regard to the passage of the Amending legislation. As the authorities discussed below demonstrate, this question, which is the second of the sub-issues identified at [19] above, overlaps with the third sub-issue, namely, whether nonetheless it was appropriate for a Court to proceed to a full determination of a matter where it has become unnecessary to determine the matter in issue between the parties.

Was there a live issue as to costs at first instance?

There is well established authority that where, on an appeal, it becomes unnecessary to resolve the substantive matter in dispute because of an intervening event or circumstance but there is a question of who should bear the costs of the first instance proceedings, it may be appropriate to proceed to fully determine the matter so that the question of costs at first instance may be resolved.
Thus, in Prineas v Forestry Commission of NSW (1984) 53 LGRA 160, declaratory and injunctive relief had been sought in relation to road construction and associated activities in and adjacent to the Mount Boss State Forest. Hutley JA, with whom Samuels and Priestley JA agreed, observed at 162, that the proceedings had been heard during the course of an election campaign during which it had been revealed that the project the subject of the proceedings was to be abandoned. That left as the only live issue between the parties the question of costs. His Honour stated that as the costs incurred: "… must be so substantial and their effect upon a voluntary association of some thousands of members will be so serious that the appellant is entitled to have the issue dealt with despite the fact that it is unsatisfactory to have to deal with issues of great complexity purely in order to determine whether an order for costs was properly made."
In Leibler v Air New Zealand Ltd (No 2) (1998) 2 VR 525, Phillips JA observed, at 529, that: "So long as there remains the dispute between the parties about existing orders for costs, it cannot be concluded that there is no lis on foot. At first, there was some attraction in the view that, upon the demise of the main issue concerning rectification, the continued existence of any significant lis must be thrown in doubt; but the authorities are to the contrary. It appears to be well established that, so long as the appeal will have direct consequences for the parties, even if it only be in respect of existing orders for costs, there is controversy enough to sustain the appeal." (citations omitted)
Phillips JA referred, inter alia, to the observation of the Privy Council in Elders Pastoral Ltd v Bank of New Zealand [1990] 3 NZLR 129 at 133 that: "… even if the only effect of a successful appeal between the parties will be to reverse an order for costs made in the Courts below, there remains a lis or issue between the parties."
By its notice of motion, Save Our Rail only sought to have the principal judgment set aside. If the Court acceded to that order, it would leave intact, not only the declaration made by Adams J, but also the costs order made in favour of Save Our Rail. HDC and the Rail Parties have submitted that not only should the costs order be set aside, they should be the beneficiaries of a costs order, in circumstances where this Court had found for them on the appeal.
This submission has to be considered in two stages. The first is whether there was an outstanding or live issue as to the costs at first instance such that there remained a lis to be determined between the parties. This question is readily answered. In the normal course, where a party on appeal succeeds in having the orders made in the court below set aside, then, in accordance with the Civil Procedure Act 2005 (NSW), s 98 and the UCPR, r 42.1 that party is usually entitled to an order for costs of the proceedings in the court below. Although the Court ordered those costs without further argument, those costs were undoubtedly in contention depending on the outcome of the appeal. Accordingly, I consider that there was a lis between the parties that required determination.
The determination of that lis required the determination of the principal issue raised in the proceedings. For that reason alone, I am of the opinion that it was appropriate and necessary for the Court to proceed to deliver judgment notwithstanding the passage of the Amending Act.

Should the Court have refrained from delivering judgment?

There is also a line of authority to the effect that a court may proceed to determine a matter notwithstanding that, for whatever reason, the substantive issue is no longer in issue, where the decision may affect other cases. In People with Disability Australia Inc v Minister for Disability Services proceedings were brought in relation to certain institutional accommodation which had been closed after the notice of appeal was filed but well before the matter was set down for hearing. The Court was only made aware of the closures shortly before the close of the oral submissions of the Minister.
The question arose as to whether the Court should proceed with the hearing and the determination of the appeal. The Court observed, at [12], that as the centres had been closed, any decision the Court made would not have any effect on those institutions. The Court noted, at [13], that it nonetheless retained a discretion whether to determine the appeal, stating at [14]: "One of the factors which would cause the Court to exercise its discretion and determine the matter is where the decision subject of the appeal is likely to affect other cases: see Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334; Long v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCAFC 438; Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; Hope Downs Management Services v Hamersley Iron Pty Ltd [1999] FCA 1652; Bonan v Hadgkiss [2007] FCAFC 113."
In the circumstances, the Court proceeded to determine the appeal as it involved a question of statutory construction that was relevant, indeed pivotal, to at least one other pending proceeding, adding however, at [15], that: "Had the position between the parties in this case been known to the Court when the matter first became moot, a different position may have been taken."
To the same effect are the observations of Campbell JA in Jardine and Jardine Investments v Metcash Ltd at [30] where his Honour noted that one aspect of the Court's power to ensure its proceedings are not abused is the power "to halt proceedings (including an appeal) that pose a question that has become moot, ie that will produce no foreseeable consequence for the parties". Nonetheless, Campbell JA observed that the Court had a discretion to permit an appeal to proceed, "if a practical point would be served by doing so": at [32]. Campbell JA observed that circumstances where the Court might do so was when there were live questions of costs which depended upon the outcome of the appeal or, relevantly for the point presently being made, where the decision was likely to affect other cases.
The same approach was taken in Federal Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573; [2000] FCA 420, [16] where the Court stated that there remained a controversy as to costs and the appeal involved an issue of construction that had significance beyond the immediate rights of the present parties which made it appropriate to finally determine the matter, notwithstanding that subsequent circumstances had rendered the proceedings unnecessary.
The matters relevant to the discretion whether to proceed to a final determination are not limited to the matters discussed above. In Bonan v Hadgkiss (2007) 160 FCR 29; FCAFC 113, the Court, at [10], referred to the following factors as being relevant: "… whether the decision under appeal has ramifications which extend beyond the facts of the case in question and it is in the public interest that the issue be resolved; whether the decision under appeal reflects adversely upon the reputation of one of the parties and the determination of the appeal may serve to vindicate that party's reputation; whether a finding of bad faith by the decision‑maker has been made; whether there is doubt over the correctness of the decision under appeal; the amount of judicial resources which would be taken in hearing and determining the appeal; and the costs issue."
See also Attorney-General (NSW) v XY [2014] NSWCA 466 at [116].
HDC and the Rail Parties submitted that in addition to the question of where the costs at first instance should fall, there were cogent reasons to deliver judgment. HDC submitted: "The correct question to ask is whether HDC's appeal is moot, not whether Save Our Rail's proceedings below have now been rendered pointless (or would have been, had the legislation been enacted before Adams J's decision) … Upon any analysis, HDC's property rights and status were affected by Adams J's declaration. The Amending Act did nothing to alter that position."
HDC submitted that the declaration by Adams J, that it was a "rail infrastructure owner" for the purposes of the Transport Administration Act, may have consequences beyond the particular circumstances which gave rise to the proceedings at first instance. Further, HDC submitted that the Amending Act does not impact on the declaration made by the primary judge as to its status as a "rail infrastructure owner". HDC also submitted that the appeal raised questions of statutory construction which might arise in the future and that the matter had been heard and judicial resources already expended.
Because I have already determined that it was appropriate for the Court to have delivered the principal judgment because the costs question in the court below depended upon the outcome of the appeal, it is not necessary to make any observation as to the correctness of the line of authority referred to above, which in any event was not the subject of challenge in this Court.
On the assumption that those authorities are correct, they provide another basis upon which it was appropriate, in the exercise of its discretion, for the Court to have delivered the principal judgment. There was a significant issue in the case as to the proper construction of the legislation, and in particular s 99A of the Transport Administration Act. That is a question of importance in itself, especially for the Rail Parties, having regard to the general application of the Act to all rail infrastructure in the State.
Whether HDC would be adversely affected by the declaration that it was a "rail infrastructure owner" is a different matter. Whether it was a "rail infrastructure owner" was not only dependant upon the proper construction of a number of provisions of the Transport Administration Act and s 99A in particular, but was also fact dependent. As the principal judgment indicates, the facts were within a limited scope. Nonetheless, the effect of the declarations was that HDC had a particular status which may have ongoing legal consequences for it under the Transport Administration Act.
In addition, that the construction of s 99A may also arise in the future provided another basis as to why it was appropriate to deliver judgment.

Conclusion

For the reasons discussed above, I see no error in the Court having delivered the principal judgment and I would decline to order that the principal judgment be set aside.

Costs of the appeal

Subject to the rules and any other Act, costs are in the discretion of the Court: Civil Procedure Act, s 98. Unless it appears some other order should be made, the usual order as to costs is that costs follow the event: UCPR, r 42.1. In determining whether some "other order" should be made, the discretion as to costs "must be exercised judicially in accordance with established principle and factors directly connected with the litigation": Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [65]; see also Ruddock v Vadarlis (2001) 115 FCR 229; [2001] FCA 1865 at [9].

The submissions of the parties

Save Our Rail submitted that even if the Court determined that this was an appropriate case in which to give an "advisory opinion", in the sense described above of exercising a discretion to deliver judgment, this Court ought to vacate the orders made as to costs. The submission was that if there was such "exceptional public interest" as to justify proceeding to judgment, it follows that Save Our Rail's bringing of the proceedings was necessary to clarify the law and serve the public interest. In this regard, Save Our Rail submitted that, where a public interest group is involved, there may be considerations warranting departure from the usual order that costs follow the event: Ruddock v Vadarlis.
Save Our Rail submitted that, in any event, where proceedings are rendered moot by supervening events, the appropriate exercise of the costs discretion is to let losses lie where they fall: Kiama Council v Grant [2006] NSWLEC 96 at [72]-[77]. Save Our Rail submitted that there was nothing that it, as a public interest group, could possibly have gained from the judgment and that the passing of the legislation was totally out of its control and in many respects vindicated its position. It submitted that had it been aware that the legislation would be passed there would have been no utility in it pursuing or defending the appeal.
HDC contended that the "supervening event" line of authority invoked by Save Our Rail was of no application to the case at hand. In this regard, HDC emphasised that this was not a case where proceedings were discontinued because of a supervening event outside of the parties' control and which removed the subject-matter of the proceedings before the proceedings were determined. HDC also placed reliance on the decision in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd [1996] NSWCA 365 as a case in which it was held that the subsequent passage of legislation should not affect the determination of costs notwithstanding the fact that the legislation rendered the appeal otiose.
In relation to the 'public interest litigation' argument, HDC stressed that the fact that proceedings are brought otherwise than for personal or financial gain does not of itself detract from the ordinary rule as to costs. HDC submitted that Save Our Rail "bears the onus to establish that the proceeding was brought in the public interest and that 'something more' warrants departure from the general rule". In this regard, HDC contended that the proceedings had been commenced "to achieve a political outcome", that "[t]here is no evidence that Save Our Rail's members would not benefit personally" from the proceedings, and that Save Our Rail "knew that legislation to effect the closure could have been introduced at any time" and "took that political risk". Accordingly, HDC submitted that there was no basis for departure from the usual rule as to costs.
Like HDC, the Rail Parties emphasised that something more than the fact that litigation is 'public interest litigation' is required to displace the ordinary rule as to costs. It was submitted in this regard that the evidence that Save Our Rail has 200 members and was established to advocate for the retention of rail services into Newcastle Station was insufficient. The Rail Parties also contended that "Save Our Rail is pursuing a particular policy agenda", and that "[i]t is entitled to do so, but cannot claim its agenda represents the interest of the general public". The Rail Parties invoked the decision of this Court in Rosemount Estates for the proposition that: "The fact that legislation passed whilst the Court's decision was reserved may have rendered the proceedings largely moot does not indicate that the general rule as to costs should be departed from."

The principles concerning "public interest litigation"

As I recently explained in Botany Bay City Council v Minister for Local Government (No 2) [2016] NSWCA 127: "[6] It is uncontroversial that there is no blanket exception from the usual rule as to costs for so-called 'public interest litigation'. As Gaudron and Gummow JJ noted in Oshlack at [30]: "That is a 'nebulous concept' … unless given further content of a legally normative nature. It also tends … to distract attention from the legal issue which is at stake." [7] That said, since the decision in Oshlack, it has been recognised that 'the fact that litigation can properly be classed as 'public interest litigation' may be a proper reason for making no order for costs': per Young JA in Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39 at [24]. However, something more than the mere fact of an element of 'public interest' will be required: Minister for Planning v Walker (No 2) [2008] NSWCA 334 per Hodgson JA at [9]; Hastings Point (No 3) at [27]."
As Young JA emphasised in Hastings Point Progress Association Inc v Tweed Shire Council (No 3) (2010) 172 LGERA 157; [2010] NSWCA 39 at [48]: "… the courts must be very careful to see that the concept of public interest litigation does not become an umbrella for the exercise of discretion as to costs on an unprincipled and haphazard and unjudicial manner."
In that regard, the mere fact that the moving party in proceedings is a body or organisation established to champion or is in pursuit of the "public interest" will not of itself warrant departure from the usual order as to costs: see, for example, Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) (2011) 280 ALR 91; [2011] FCAFC 84 at [13]. As Burchett J explained in Australian Conservation Foundation v Forestry Commission (No 2) [1988] FCA 144 at [12]: "If a body is set up to pursue causes, which its founders consider to be in the public interest, and which generally may be in the public interest, by means including court proceedings against others, it does not follow that those proceeded against should be deprived of the ordinary protection of a right to an order in respect of their costs in the event the claims made against them prove unfounded."
Even where it is accepted that the commencement of proceedings was in the 'public interest', the consequences of that factor in terms of costs will not necessarily be the same as between first instance and appellate proceedings. As Hodgson JA observed in Kindimindi Investments Pty Limited v Lane Cove Council (2007) 150 LGERA 333; [2007] NSWCA 38 at [52]: "… considerations associated with the bringing of proceedings in the public interest may weigh less heavily in appeal proceedings than in first instance proceedings". That said: "Where an appeal raises a novel question of much general importance and some difficulty, the appeal court may decline to order costs against the unsuccessful appellant": Save the Ridge Inc v Commonwealth [2006] FCAFC 51 at [12]
The essential point of all of this is that it is not the abstract characterisation of proceedings as 'public interest litigation' that may warrant departure from the usual order as to costs. As Black CJ and French J emphasised in Ruddock v Vadarlis at [18]: "That a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event."
Rather, "[u]sually the circumstances in which a successful party is denied all or part of its costs have to do with its conduct of the proceedings": Ruddock v Vadarlis at [15].
In my opinion, Save Our Rail has not established that the usual rule, that costs follow the event, should not apply in this case. The litigation brought by Save Our Rail did not have any implications beyond a small section of railway line in Newcastle. Even accepting the public interest nature of the litigation was as submitted, Save Our Rail has not pointed to any additional factor sufficient to persuade me that it should not bear the costs of the appeal, as originally ordered.

Exercise of costs discretions where proceedings rendered unnecessary

Save Our Rail submitted, citing Kiama Council v Grant, that where proceedings are rendered moot by supervening events, the appropriate exercise of the costs discretion is to let losses lie where they fall. That proposition warrants careful consideration. It is appropriate to commence by reference to two categories of cases distinguished by Burchett J in ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 at [6]: "In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs."
In the single judge decision of the High Court in Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6, McHugh J considered an application for costs under the High Court Rules, O 71 r 39, which was in the following terms: "When for any reason the further prosecution of a proceeding becomes unnecessary, except for the purpose of determining by whom the costs of the proceeding should be paid, any party may apply to the Court or a Justice to determine that question, and thereupon the Court or Justice may make such order as is just."
In Lai Qin, the applicant's proceedings in the High Court seeking to challenge the Minister's refusal to grant her a visa were rendered unnecessary by the Minister granting the applicant a visa after the proceedings had been commenced. Noting the discretionary nature of costs, McHugh J observed, at 624, that the discretion is "[o]rdinarily … exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs". As his Honour explained, "[s]uccess in the action or on particular issues is the fact that usually controls the exercise of the discretion". In this regard, McHugh J acknowledged, at 624, that in cases where there has been no hearing on the merits, "a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order". Relevantly for present purposes, his Honour went to observe, 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 cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." (citations omitted)
Of the cases cited by McHugh J, a number concerned costs where interlocutory relief had been granted but the proceedings were never determined on the merits. Hill J summarised the principles he discerned as relevant in that kind of case in Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; [1993] FCA 401: "[31] These cases seem to me to support the following propositions being made. (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order. (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial. This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them. (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation. (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that that interlocutory relief has been granted. [32] Where interlocutory relief has been granted, that fact carries no implication as to the ultimate merits of the case but does ordinarily suggest that the Court granting interlocutory relief has accepted or found that there is an arguable issue to be tried between the parties and that the balance of convenience favours the grant of that relief." (citations omitted)
Kiama Council v Grant does not stand for the unqualified proposition for which it was cited. Rather, Preston CJ summarised the relevant principles as follows, at [80]: "The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits: (a) where one party effectively surrenders to the other party by: (i) discontinuing without the consent of the other party; or (ii) giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party; the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party; and (b) where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs, the proper exercise of the costs discretion will ordinarily be to make no order as to costs unless: (i) one of the parties has acted so unreasonably that the other party should obtain the costs of the action; or (ii) even if both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried so that the party should obtain the costs of the action."
Whilst these cases involved the occurrence of supervening events which rendered the proceedings futile, they are not of a kind with this case. Unlike the circumstances envisaged in the cases above, in Burchett J's second category, and the circumstances envisaged by the High Court Rules, O 71 r 39 and Lai Qin, in this case the Court did hear full argument on the merits before the relevant supervening event occurred. Further, for the reasons outlined above, the proceedings were not rendered moot by the supervening legislative enactment. This is a case in which it was still possible, and indeed appropriate, to discern a "clear winner". There is no reason, given the circumstances, that HDC and the Rail Parties should not have their costs of the appeal.

Orders

Accordingly, I would propose the following order: Notice of motion dismissed with costs.
MACFARLAN JA: I agree with Beazley P.
MEAGHER JA: I agree for the reasons given by Beazley P that this motion should be dismissed with costs.

Amendments 25 September 2017 - Coversheet, amendment of hearing date. 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: 25 September 2017

Transport Administration Amendment (Closure of Railway Line at Newcastle) Act 2015(NSW)

Civil Procedure Rules 2005(NSW)

Charter of Human Rights and Responsibilities Act 2006(Vic)

(2010) 172 LGERA 157

(2007) 150 LGERA 333

At a glance

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Judgment (23 paragraphs)

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Legislation Cited (6)

Cases Cited (53)

Cited By (26)