Jacobs v Hurstville City Council

EX TEMPORE Judgment 1HIS HONOUR : Kevin Jacobs commenced Class 4 proceedings in this Court on 2 August 2010. Mr Jacobs is a self represented litigant. His summons seeks injunctive relief against Hurstville City Council. That injunction is to restrain the demolition of a building known as the Mortdale Masonic Temple located at 27 Cook Street, Mortdale. His initial application was for interlocutory relief to restrain the Council from taking any action which, he apprehended, would result in the demolition of that building before application for final relief could be determined. 2The application for an interlocutory injunction was heard by Pain J on 6 August 2010. Her Honour refused to grant the injunction that Mr Jacobs then sought ( Jacobs v Hurstville City Council [2010] NSWLEC 216). In the course of giving her judgment her Honour said this at ([9]): "It seems to me that on the submissions made by Mr Jacobs including in relation to possible breaches of the LG Act, that there is no serious question to be tried. The relevant breach that would have to be identified by him is in relation to the Environmental Planning and Assessment Act 1979 (the EP&A Act) as that is the Act under which the development consent granted by the Council to itself in relation to the demolition of the building is regulated. No issue has been raised by Mr Jacobs concerning any possible breach of the EP&A Act. The matters he raises as potential breaches of the LG Act appear to deal with policy issues concerning the use of infrastructure funds levied by the Council which are matters for the Council and not reviewable by this Court. The Court cannot consider matters of merit in relation to judicial review challenges of Council decisions in any event." 3A transcript of the dialogue that took place before the Court on 6 August 2010 is presently before me. It reveals that discussion took place involving Mr Jacobs, the legal representative of Council and her Honour as to whether or not there would be utility in the proceedings being continued following her refusal of interlocutory relief. Notwithstanding that discussion, directions were then made which sought to have the matter prepared for hearing. 4The matter next came before the Court on 10 September 2010 when Sheahan J, as list judge, was required to give further directions for the preparation of the matter for hearing. The transcript reveals that at that time there was considerable further discussion between Mr Jacobs and his Honour as to whether or not the matter would proceed. Mr Jacobs initially indicated that he had serious doubts as to whether the matter should proceed and whether he should pursue the matter that he had, but recently, foreshadowed to the Council's solicitors, namely discontinuance of the proceedings. 5A perusal of the transcript reveals that his Honour identified to Mr Jacobs the options that were available to him, but indicated that the Court was concerned simply to understand whether he wished to proceed. His Honour indicated that if Mr Jacobs wished to proceed, further directions would be made requiring steps preparatory to hearing to be taken. Alternatively, Mr Jacobs was asked whether the matter should be left only to debate the question of costs as there had not been agreement by the Council to allow discontinuance without an order for costs being made. Ultimately, following further elaboration of the available options, Mr Jacobs indicated that he did wish to proceed. Sheahan J then gave further directions for the preparation of the matter for hearing. 6The matter was next listed before the Registrar of the Court on 29 October 2010. Mr Jacobs was present at that time. The hearing date was fixed for two days commencing on 9 February 2011. The directions then made in relation to the hearing would reasonably have indicated to Mr Jacobs that the Council would be likely to incur costs in preparing for the hearing of the matter. 7Following that hearing, preparation of the matter by the Council proceeded without any indication from Mr Jacobs that the merits of the matter would not be debated and determined during the hearing due to commence on 9 February 2011. However, when the matter was called on 9 February, Mr Jacobs did not appear. Although the Council then sought to have the proceedings dismissed, I declined to take that course. Rather, I directed that Mr Jacobs be notified of his failure to attend and that the matter would be re-listed this morning, 10 February, given that the day had already been allocated for the determination of this matter. I directed that notice to that effect be served on Mr Jacobs at his address by 5.00pm on 9 February. 8Mr Jacobs has today appeared and explained his absence yesterday. He indicated that he had forgotten that the matter had been fixed to commence yesterday and secondly that he was involved in matters, at least for a short time, requiring his attendance at the Kogarah Local Court. No challenge is made to his statement from the bar table that he had forgotten to attend yesterday, being only reminded of that fact when he received the letter from the Council's solicitor at his home yesterday afternoon. 9Mr Jacobs has indicated that he seeks to discontinue the proceedings, but that he resists any order for costs, it being the Council's application that such costs should be paid. In essence his argument in resisting such an order is that he is a self-represented litigant acting in the "public interest" and for that reason he should, in reliance upon Land and Environment Court Rule 4.2 ( LECR 4.2 ) not be ordered to pay costs. For its part the Council continues to seek an order that its costs of the proceedings to date be paid by Mr Jacobs. 10The obligation to pay costs and the considerations that pertain to the discretion in relation to such an order has three sources. First under s 98 of the Civil Procedure Act 2005, the Court is given a discretion to order costs, subject to the rules of court. Of particular significance is Uniform Civil Procedure Rule ( UCPR ) 42.19(2) as relevant to the present application. Subrule (1) of UCPR 42.19 provides that it is the rule applying to proceedings that are discontinued by an applicant. Subrule (2) of that rule is in the following terms: "(2) Unless the Court orders otherwise or the notice referred to in rule 12.1(2) otherwise provides, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which proceedings have been discontinued." 11Mr Seymour, who appears as counsel for the Council, submits that the obligation created by the rule, arising from the use of the word "must", is that an order for costs be made against a discontinuing applicant, unless an "otherwise" order is made, involving the principled exercise of discretion. 12As I have earlier indicated Mr Jacobs prays in aid the provisions of LECR 4.2(1). That rule provides as follows: (1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest." 13There are two matters to be noticed by reference to that provision. First the notion of "public interest" is not defined. Secondly, the rule would appear to be framed on the basis that the discretion afforded is available once there has been a determination that an applicant is unsuccessful. To describe an applicant as being unsuccessful seems to me not to be consistent with the right which the applicant has to discontinue the proceedings. The lack of success in proceedings rather suggests a determination made by the Court after a hearing on the merits, rather than being descriptive of the unilateral act of an applicant bringing the proceedings to an end without any such determination. 14I therefore accept the submission of Mr Seymour that LECR 4.2 does not aid Mr Jacob's submission. That said, there seems to me that there is a discretion retained by the Court to decline to make an order in accordance with UCPR 42.19(2) on the basis that litigation brought in the public interest can inform the exercise of that discretion ( Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72). 15The question before me therefore becomes whether I should apply the so-called "public interest" discretion so as to relieve Mr Jacobs from the obligation which otherwise would seem to follow from the application of UCPR 42.19. 16The principles that should be invoked when consideration is to be given to the "public interest" discretion were identified in the judgment of the Chief Judge of this Court in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No. 3) [2010] NSWLEC 59; (2010) 173 LGERA 280. As his Honour there states (at [13]) there are three considerations that must be brought to bear upon the exercise of the discretion. First, is the determination as to whether the proceedings can properly be characterised as "public interest" litigation. Secondly, whether there are particular circumstances in addition to mere characterisation as "public interest" litigation which would justify the usual rule, requiring the unsuccessful party to pay the costs, being avoided. Thirdly, there is the necessity to consider what is identified by his Honour under the head "countervailing considerations". 17In the course of delivering this judgment and in deference to the need to minimise costs occasioned by parties being in Court, I do not set out at length the application of principles that arise from Caroona . However, applying those principles I am not satisfied that the discretion should be exercised against the making of the usual order. I have no doubt that the proceedings that have been brought by Mr Jacobs were well intentioned and that they are proceedings reflecting a concern held by him, and perhaps a number of people in the local community, with the decision of the Council to demolish the Masonic Temple of Mortdale. However, I have no evidence before me indicating the extent of that "public interest". 18Of greater significance in considering that "public interest" is the history of this litigation. Whatever may have motivated the commencement of the proceedings, it is tolerably clear that from the time at which an interlocutory injunction was refused by Pain J, the prospects of success were remote indeed. I have earlier recited (at [2]) the relevant passage from her Honour's judgment that bears upon the point. In the face of her Honour's determination, that there was no serious question to be tried, no further evidence has been tendered adding to that already considered in the interlocutory judgment. In short, there is no evidence before me which seeks to demonstrate, in an admissible way, how it was that the decision of the Council to demolish the Masonic Temple was a decision made contrary to law. 19As is suggested by Mr Jacobs, the Council's decision may have been very unpopular, but that lack of popularity does not bear upon its legality. Moreover, faced with the determination made by her Honour in August last and despite some prevarication since that time, Mr Jacobs has persisted with his proceedings until today. This is so notwithstanding the opportunity he had when appearing before Sheahan J in September and again when the matter was fixed before the Registrar in October, to indicate that he would no longer prosecute his proceedings. 20The decision to proceed seems to me to raise two matters of present significance. First, it was a decision made when a determination had already been made that there was no serious question to be tried. Secondly, as Mr Jacobs acknowledges, by the time he determined to proceed in September last, the building, the subject of his proposed injunction, had already been demolished. Whatever his understanding may have been as to the consequence of directions made by the Court to have the matter prepared for hearing, it is tolerably clear from the transcript tendered before me that on 10 September the options open to Mr Jacobs, including discontinuance, were made apparent to him by Sheahan J. 21To the extent to which any "public interest" may have attended the commencement of the proceedings, it seems to me that its force, for present purposes, had long since diminished, if not been lost completely, by the time the matter came before the Court in September. It had certainly been lost completely by the time the matter was fixed for hearing in October. 22The "public interest", in my opinion, cannot extend to the maintenance of proceedings that are identified as being, in substance, without legal merit. Moreover, the basis of challenge, so far as it can be understood from the material reflected in the judgment of Pain J, was not the subject of any evidence or argument demonstrating the continued "public interest" in any aspect of environmental law requiring elucidation by this Court. 23For all these reasons, I am of the opinion that Mr Jacobs should be ordered to pay the costs of the Council, being those costs which have been incurred until today, as it is only now that Mr Jacobs has sought the leave of the Court to discontinue the proceedings. 24The orders that I make are therefore as follows: