Jacobson & McMillan v Ballina Shire Council

KEY ISSUES: Costs :- disentitling conduct; whether order for indemnity costs appropriate

Environmental Planning and Assessment Act 1979 s 121ZK, s 123 LEGISLATION CITED: Land and Environment Court Act 1979 s 69 Land and Environment Court Rules 1996 Pt 15 r 9, Pt 16 r 4 Local Government Act 1993 s 124, s 180, s 673(1), s 674(1)

Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 135; Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 217; Clayton Jacobson and Lee Anne McMillan v Ballina Shire Council [2006] NSWLEC 111; Clayton Jacobson and Lee Anne McMillan v Ballina Shire Council [2006] NSWLEC 114; CASES CITED: Colgate-Palmolive Company & Another v Cussons Pty Limited (1993) 46 FCR 225; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others (1988) 81 ALR 397; Gee v Port Stephens Council (2003) 131 LGERA 325; Grant v Kiama Municipal Council [2006] NSWLEC 70; Latoudis v Casey (1990) 170 CLR 534; Oshlack v Richmond River Council (1998) 193 CLR 72

APPLICANTS (21462 of 2004) / RESPONDENTS (40773 of 2005) C Jacobson & L McMillan (in person)

LEGAL REPRESENTATIVES: RESPONDENT (21462 of 2004) / APPLICANT (40773 of 2005) M Stevens SOLICITORS W J Grace & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

CLAYTON JACOBSON & LEE ANNE McMILLAN Applicants

CLAYTON JACOBSON & LEE ANNE McMILLAN Respondents

JUDGMENT Jagot J: Background 1 The parties to these class 2 and class 4 proceedings now seek orders for costs. For convenience, I will refer in these reasons to Mr Jacobson and Ms McMillan as the land owners, and Ballina Shire Council as the Council.

2 I dealt with two notices of motion in the class 2 proceedings. The first was a notice of motion dated 10 February 2006 filed and served by the Council seeking orders that it be granted access to certain documents produced to the Court by the former solicitor for the land owners, pursuant to a subpoena served by the land owners. The land owners resisted an order granting the Council access to these documents on the ground of legal professional privilege. The Council submitted that privilege had been waived on various grounds. I found in favour of the Council and made orders on 16 February 2006 as sought by the Council. My reasons for that decision are set out in Clayton Jacobson and Lee Anne McMillan v Ballina Shire Council [2006] NSWLEC 111.

3 The second was a notice of motion filed and served by the land owners seeking to set aside consent orders which finally disposed of the class 2 proceedings. I made orders on 17 February 2006 dismissing that notice of motion. My reasons for that decision are set out in Clayton Jacobson and Lee Anne McMillan v Ballina Shire Council [2006] NSWLEC 114.

4 With respect to both notices of motion, I made orders to the effect that costs be reserved.

5 The class 4 application was filed by the Council on 15 July 2005. The land owners defended the class 4 proceedings, which were heard on 17, 20, 21 and 22 February 2006. I delivered my principal reasons for judgment on 28 March 2006 (Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 135). I made orders as foreshadowed in those reasons on 30 May 2006, following a further submission by the Council (Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 217).

6 The Council now seeks orders that the land owners pay the Council's costs of the two notices of motion in the class 2 proceedings and the class 4 proceedings, on an indemnity or party/party basis. The Council also seeks an order confirming that the costs that remain outstanding pursuant to the consent orders dated 8 April 2005 in the class 2 proceedings (which I did not set aside) are to be paid by the land owners. The land owners, for their part, seek the same orders (but against the Council) or orders that each party pay its own costs of the various actions.

7 Section 69 of the Land and Environment Court Act 1979 is in the following terms: (1) In this section, costs includes: (a) costs of or incidental to proceedings in the Court, (b) in the case of an appeal to the Court, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal, and (c) in the case of proceedings transferred or remitted to the Court, the costs of or incidental to the whole proceedings, both before and after the transfer or remittal. (2) Subject to the rules and subject to any other Act: (a) costs are in the discretion of the Court, (b) the Court may determine by whom and to what extent costs are to be paid, and (c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis.

(9) This section does not apply to proceedings in Class 5, 6 or 7 of the Court's jurisdiction.

8 Part 16 r 4 of the Land and Environment Court Rules 1996 provides as follows: (1) This rule applies to the following proceedings in classes 1, 2 and 3 of the Court's jurisdiction: (a) proceedings under Sections 95A, 96, 97, 98, 109K, 121ZK, 121ZM and 149F of the Environmental Planning and Assessment Act 1979, (b) proceedings under sections 176, 177, 178, 182 and 611 of the Local Government Act 1993, (c) proceedings under s 37 of the Valuation of Land Act 1916, (d) proceedings under s 38A of the Land Tax Management Act 1956, and (e) proceedings under s 96 of the Taxation Administration Act 1996. (2) No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable.

9 In Oshlack v Richmond River Council (1998) 193 CLR 72 at [45], Gaudron and Gummow JJ said that s 69 of the Land and Environment Court Act 1979 is not to be narrowly construed in its operation upon litigation under s 123 of the Environmental Planning and Assessment Act 1979. The same proposition must apply to proceedings under the equivalent provisions in the Local Government Act 1993 (ss 673(1) and 674(1)), pursuant to which the Council brought the class 4 proceedings.

10 In Latoudis v Casey (1990) 170 CLR 534 at 543, Mason CJ stressed that: If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.

11 In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others (1988) 81 ALR 397 at 401 - 402 Woodward J described the judicial discretion on costs, including orders for costs on an indemnity basis. His Honour observed that: As I said in Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 171 ALR 287 at 288, concerning this court's discretion in the award of costs: That discretion is 'absolute and unfettered', but must be exercised judicially … Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases where 'there is some special or unusual feature in the case to justify the court exercising its discretion in that way' ( Preston v Preston [1982] 1 All ER 41 at 58).

I believe that it is appropriate to consider awarding "solicitor and client" or "indemnity" costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion.

12 In Colgate-Palmolive Company & Another v Cussons Pty Limited (1993) 46 FCR 225 at 233 - 234, Sheppard J said that:

In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes … said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require". Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston … namely, there should be some special feature or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule …

It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.

13 In Grant v Kiama Municipal Council [2006] NSWLEC 70, Preston J dealt with Pt 16 r 4 of the Land and Environment Court Rules 1996, a rule which applies to many merit appeals in this Court. At [74], Preston J identified a number of decisions of this Court in which, in merit appeals, the successful party to a motion has been awarded its costs of the motion. In this respect I note that s 180 of the Local Government Act 1993 (pursuant to which the class 2 appeal was commenced) is not listed as one of the proceedings to which Pt 16 r 4 applies, despite the fact that its equivalent provision in the Environmental Planning and Assessment Act 1979 (s 121ZK) is listed.

14 The Council submitted that it should be granted the orders for costs that it sought on the following grounds: (1) The actions of the Council in respect of the order under s 124 of the Local Government Act 1993, all aspects of the class 2 proceedings and the class 4 proceedings were proper.

(2) The land owners' notice of motion in the class 2 proceedings seeking to set aside the consent orders, although brought under the umbrella of the merit appeal, invoked the Court's inherent jurisdiction and thus would not be subject to the ordinary approach to costs in merit appeals (reflected in Pt 16 r 4).

(3) The Council had been wholly successful in defending the land owners' notice of motion seeking to set aside the consent orders in the class 2 proceedings.

(4) The land owners' refusal to accept that they had waived privilege over their former solicitor's file was unsustainable, and the Council had been wholly successful with respect to its notice of motion in the class 2 proceedings.

(5) The land owners' pursuit of the class 2 appeal was contrary to their own legal advice and in the face of the Council's repeated attempts to inform them that their appeal was futile.

(6) The Council had been wholly successful in respect of the class 4 proceedings.

(7) With respect to the notices of motion in the class 2 proceedings and the class 4 proceedings as a whole the land owners, properly advised, should have known that they had no chance of success and hence their actions must be presumed to have been for "some ulterior motive or because of some wilful disregard of the known facts or the clearly established law" (see Fountain Selected Meats).

(8) The conduct of the land owners, in all of the circumstances of both the class 2 and class 4 proceedings, was unreasonable in that the land owners: - (a) disregarded their own legal advice, (b) disregarded the repeated attempts by the Council to resolve the matter, and (c) disregarded the manifest facts making the land owners' position in the proceedings untenable.

15 The land owners made submissions to the following effect. (1) The Council had engaged in a range of disentitling conduct including that:- (a) the Council had provided the land owners with the information about greywater re-use on which the land owners had relied, (b) the Council's motivation was to "open planning issues surrounding use of the subject property", which was improper, (c) the Council had sought an application for a sewage management facility for the northern building and alleged that there was no approval for any such facility, being another attempt by the Council to open planning issues with respect to the property, (d) the land owners had relied on the evidence of Mr Alderson, consulting engineer, (e) the requirements of the Council under the interlocutory orders made by the Court for daily pump out were unreasonable, unnecessary and punitive, (f) there was no basis for the Council's allegations of imminent environmental harm or harm to humans, (g) the foundation of the class 4 proceedings was thus false, (h) on the first day of the hearing of the class 4 proceedings the Council "abandoned all the planning issues", so that all that remained was plumbing issues most of which had been done previously, and (i) the conduct of the Council meant that the land owners had "no choice but to go on alone".

(2) The Council could and should have consented to the setting aside of the consent orders in the class 2 proceedings, which would have made the class 4 proceedings superfluous. The conduct of the Council in refusing to set aside the class 2 consent orders (on the one hand) and pursuing the class 4 proceedings (on the other hand) was unreasonable.

(3) The class 2 and 4 proceedings were indistinguishable. Both concerned the merits of the s 124 order. Hence, at worst, the usual practice in merit appeals of no order for costs should be applied. 16 The land owners also made a submission relating to the fact that, before the commencement of any of the proceedings, the land owners had sought advice from the solicitor for the Council. The land owners referred to a conference which they had with the Council's solicitor and the provision of certain documents to him and their return. Insofar as the land owners sought that I draw some adverse inference against the Council or the Council's solicitor from these circumstances, I decline to do so. The Council's solicitor swore an affidavit on 29 May 2006 relating to those contentions, the contents of which I accept.

General 17 I do not propose to repeat all of the findings which I made in the decisions referred to in paragraphs 2 to 5 above.

18 With respect to the Council's notice of motion seeking access to documents over which the land owners maintained a claim for legal professional privilege, I found that the land owners had waived legal professional privilege. The Council was successful on that notice of motion.

19 With respect to the land owners' notice of motion seeking to set aside the consent orders in the class 2 proceedings, I found that the consent orders were binding in accordance with their terms and could not be set aside by reference to either Pt 15 r 9 of the Land and Environment Court Rules 1996 or to any inherent or implied jurisdiction it the Court. The Council was successful in its defence of that notice of motion.

20 With respect to the class 4 proceedings, I found that the land owners had acted in breach of the Local Government Act 1993 and that, in all the circumstances, there remained a threatened breach which ought to be restrained by the making of final orders. In determining to make orders against the land owners, I was satisfied that the threatened breaches involved potential risks to human health and the environment associated with the discharge of untreated waste water on land adjacent to a waterway and in a high water table area. I was satisfied that the discretionary factors overwhelmingly weighed in favour of making final orders against the land owners. I concluded that the Council had brought proceedings to enforce some of the most basic public health requirements of the Local Government Act 1993. In the course of so concluding, I rejected the land owners' contentions that the Council had acted for an improper or ulterior purpose and that Mr Spring, Council officer, had acted for an improper or ulterior purpose or was otherwise biased against the land owners.

21 The land owners' contentions of disentitling conduct on the part of the Council in the class 2 and class 4 proceedings are unfounded. In many respects, they are also inconsistent with my findings in those proceedings. In addition to those findings which I have briefly summarised in paragraphs 18 to 20 above, I am satisfied that: (1) The Council was entitled to defend the land owners' notice of motion seeking to set aside the orders in the class 2 proceedings. The orders were made by consent and were regular on their face. The Council was not subject to any obligation to accede to the land owners' request that the consent orders be set aside. Hence, I do not accept the land owners' submission that the Council's conduct in this respect was unreasonable.

(2) The Council was entitled to commence the class 4 proceedings as and when it did. The conduct of the Council in so doing was not unreasonable, but was in pursuit of some of its basic obligations under the Local Government Act 1993.

(3) The Council was entitled to make its application for interlocutory relief in the class 4 proceedings. The Court made interlocutory orders as sought by the Council and hence was satisfied that there was a proper basis for the Council seeking those orders as and when it did.

(4) The Council did not abandon any material part of its claim in the class 4 proceedings. The land owners' submission to this effect is misconceived. Class 4 proceedings

22 I do not accept the land owners' submission that the class 4 proceedings should be characterised as akin to a merits appeal, because of the s 124 order. The s 124 order was one issue in the proceedings only. The class 4 proceedings were civil enforcement proceedings in respect of alleged breaches of the Local Government Act 1993, which breaches I found had occurred and where I was satisfied that final orders should be made against the land owners.

23 Although the land owners submitted that they had carried out most of the plumbing work required in the class 4 proceedings in any event, the land owners actively defended the class 4 proceedings on numerous grounds over four days. The notices of motion in the class 2 proceedings were heard over two days. In all, the various proceedings involved six hearing days, leaving aside the Council's notice of motion for interlocutory relief and other pre-hearing attendances.

24 All of these circumstances point to the conclusion that, in the class 4 proceedings, an order for costs should be made in favour of the Council reflecting the usual practice that a successful party in such proceedings is entitled to such an order to compensate it against the expense to which it has been put by reason of the proceedings. The "usual order as to costs" is made because "fairness dictates that the unsuccessful party typically bears the liability for the costs of the successful litigation" (Oshlack at [97]). The land owners' claims for costs against the Council in the class 4 proceedings should not be accepted. I am satisfied that there is no fact or circumstance to which the land owners have referred, or otherwise, that would justify any such order. I am also satisfied that the Council has not engaged in any disentitling conduct, and do not accept that there should be no order as to costs in the class 4 proceedings on that account. Hence, in the exercise of my discretion, the usual order as to costs in favour of the Council should be made in the class 4 proceedings.

25 If Pt 16 r 4 applied to the class 2 proceedings (which it does not), then I would also be satisfied that, in the circumstances of the particular case, it would be fair and reasonable to make an order that the land owners pay the Council's costs of the two notices of motion to which I have referred. The substance of both notices of motion was unconnected to the merit appeal against the s 124 order, and was akin to ordinary litigation. In Gee v Port Stephens Council (2003) 131 LGERA 325, McClellan J considered the issue of costs in merit appeals. At [60], McClellan J distinguished between "matters appropriate for ordinary litigation" and the "merits of the application". The decisions referred to by Preston J in Grant v Kiama Municipal Council at [74] also disclose that notices of motion are generally treated as subject to the "usual order as to costs".

26 Both notices of motion in the class 2 proceedings had the character of "ordinary litigation". The Council was successful in respect of both notices of motion. It should be compensated for the expense to which it has been put. The land owners claims for costs against the Council in the class 2 proceedings, and on the notices of motion in those class 2 proceedings, should not be accepted. I am satisfied that there is no fact or circumstance to which the land owners have referred, or otherwise, that would justify any such order. For the above reasons, I also do not accept the submission that there should be no order as to costs in the class 2 proceedings by reason of disentitling conduct by the Council or otherwise.

27 As I have pointed out, given the omission of reference to s 180 in Pt 16 r 4, means that the rule does not apply. The discretion in s 69 of the Land and Environment Court Act 1979 applies. The same considerations which would have led me to the conclusion that an order for costs should be made in favour of the Council if Pt 16 r 4 applies, would equally arise in the exercise of the discretion under s 69. That is to say, whether or not the Council is correct in characterising the land owners' notice of motion in the class 2 proceedings as one dependent upon the inherent jurisdiction of the Court, I am satisfied that the Council should be the beneficiary of an order as to costs with respect to the two notices of motion in the class 2 proceedings.

Indemnity costs 28 The question of indemnity costs, as sought by the Council, remains. As noted, the Council seeks such orders because it contends that the land owners' conduct in the litigation has been unreasonable in various respects, has been in the face of the known facts and the established law and thus should be presumed to be for some ulterior motive.

29 I am not satisfied that the land owners' defence of the Council's notice of motion was patently hopeless or doomed to fail. I do not infer that the land owners acted for some ulterior purpose in seeking to maintain privilege over the documents or that they otherwise acted unreasonably in defending the notice of motion. While I found that the land owners had waived legal professional privilege over these communications with the consequence that the Council was successful on its notice of motion, that fact does not warrant the making of any special costs order against the land owners (that is, over and above the usual order as to costs).

30 I am also satisfied that no such special costs order ought to be made against the land owners with respect to their own notice of motion in the class 2 proceedings seeking to set aside the consent orders. Again, the Council was successful in defending that notice of motion. However, I do not consider the notice of motion to have been patently hopeless either because of any procedural defect (that it was brought by way of notice of motion rather than fresh proceedings) or because it was substantively doomed to fail. I also do not accept that the land owners brought their notice of motion in the class 2 proceedings for any improper or ulterior purpose or that their conduct in so doing was unreasonable in the sense required to render a special costs order appropriate. In particular, I do not accept that the advice received by the land owners with respect to the substance of the class 2 proceedings or the Council's attempts to settle those proceedings render the land owners' conduct in seeking to have the consent orders set aside improper or unreasonable, such as to warrant the making of an indemnity costs order against them.

31 I found in the class 4 proceedings that the land owners' conduct demonstrated serious misconceptions about the requirements of the Local Government Act 1993 and the potential risks to human health and the environment associated with the discharge of untreated wastewater. I accepted that the likely costs of compliance with the s 124 order and legislation were not prohibitive. I was satisfied that the land owners' allegations against the Council and Mr Spring (of acting for improper purposes or by reason of bias or malice) were unfounded.

32 The Council submits that I should infer from an unsigned document dated 14 February 2006 to the land owners' solicitors, that the land owners had been advised by those solicitors and both senior and junior counsel that they should vacate the hearing date and do all such things and sign all such documents as may be necessary to seek approval for the sewage management facilities on the premises. That is, the Council submits that I should infer that the defence of the class 4 proceedings was patently unreasonable, in that the defence was doomed to fail, and was or should have been known by the land owners to be so doomed.

33 I am not prepared to draw the inference which the Council seeks by reference to the 14 February 2006 document. First, the document is unsigned. Secondly, a party may have many reasons for considering a compromise of proceedings other than a perception or advice that it is manifestly hopeless. Having carefully considered the whole of the relevant circumstances of the class 4 proceedings, I am not satisfied that the land owners' defence of those proceedings can fairly be characterised as in manifest defiance of the known facts or law, or that the land owners otherwise acted so unreasonably as to justify an indemnity costs order. The class 4 proceedings involved questions of construction of the Local Government Act 1993 and Regulations (see Ballina Shire Council v Jacobson & McMillan [2006] NSWLEC 135 at [42] to [52]). Further, the report of Mr Alderson, consulting engineer, may have provided some basis for the belief of the landowners that the s 124 order was invalid or unwarranted (even though, as I found, it was a valid order properly issued by the Council, and I did not accept Mr Alderson's primary conclusions in his report). These circumstances both speak against a defence having been raised in wilful disregard of the known facts or the clearly established law.

34 The Council submitted that its ratepayers ought to bear no liability for the land owners wholly unsuccessful actions in the various proceedings (thus supporting the making of indemnity costs orders). I do not think the status of the Council or the position of its ratepayers can convert a matter where an indemnity costs order is inappropriate into one in which such an order is appropriate.

35 The Council submitted that the land owners had engaged in obfuscation and time wasting. I did find that the land owners' improper purpose and bias submissions (against the Council and Mr Spring) were unfounded. The land owners' focus on those matters (which remained apparent in the costs applications) did prolong the hearing. These allegations, however, were one part only of the land owners' defence. I do not consider it appropriate to characterise the land owners' conduct in defending the proceedings generally in the terms submitted by the Council.

36 The Council submitted that the unreasonable conduct of the land owners continued after I made orders in the class 4 proceedings and, in particular, referred to difficulties with service. I do not consider those matters material in all of the circumstances, and the Council conceded that they were minor in the overall context.

37 It follows that I do not accept the Council's submissions that orders should be made for the land owners to pay the Council's costs of the two notices of motion in the class 2 proceedings and of the class 4 proceedings on an indemnity basis. It is not necessary for me to confirm the costs order contained in the consent orders dated 8 April 2005 - by reason of my dismissal of the land owners' notice of motion to set aside the consent orders, that order remains on foot.

38 For the reasons set out above, I am satisfied that I should exercise my discretion under s 69 of the Land and Environment Court Act 1979 to make orders for costs in favour of the Council on the usual party/party basis in respect of the two notices of motion in the class 2 proceedings and in the class 4 proceedings (including the Council's costs associated with the notice of motion of the Council for interlocutory relief).

Proceedings 21462 of 2004 (1) The applicants are to pay the respondent's costs of and incidental to the respondent's notice of motion dated 10 February 2006 as agreed or as assessed.

(2) The applicants are to pay the respondent's costs of and incidental to the applicants' notice of motion dated 30 June 2005 as agreed or as assessed.

(3) The exhibits are returned. Proceedings 40773 of 2005 (1) The respondents are to pay the applicant's costs of and incidental to the proceedings (including the applicant's notice of motion dated 23 August 2005) as agreed or as assessed.

(2) The exhibits are returned. ****************************

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