Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning

Cost applications

1. The two Notices of Motion presently before me are: 1. a Motion brought by Moorebank (the first respondent in proceedings 2016/00159652 and the second respondent in proceedings 2016/00157848) signed 6 July 2017 seeking the following orders: 1 The first and second applicants in proceedings 2016/157848 and the applicant in proceedings 2016/159652 pay the costs of Moorebank Recyclers Pty Ltd ('Moorebank') in respect of the determination of the separate question concerning whether the earthworks consent granted by Liverpool City Council on 29 June 2006 had been physically commenced for the purposes of s.95(4) of the Environmental Planning and Assessment Act 1979 determined by Robson J on 16 September 2016 on a joint and several basis. 2 The first and second applicants in proceedings 2016/157848 pay the costs of Moorebank concerning whether the proposal was in fact a "transitional part 3A project". 3 Costs. … ('Moorebank Costs Application'). 1. A Motion brought by Benedict (applicants in proceedings 2016/00157848) signed 5 July 2017 seeking the following orders: 1 In the event that the Court makes an order for costs against the first and/or second applicants pursuant to the second respondent's Notice of Motion for costs heard on 23 June 2017, the Court orders that the second respondent pay the first and second applicants' costs, as agreed or assessed, of and incidental to the "issue estoppel" and "earlier undertaking" questions, the subject of [57] to [65] of the judgment of 8 May 2017. 2 The motion be returnable before Justice Robson on 23 June 2017. 3 Costs. ('Benedict Costs Application').
2. In summary, the Moorebank Costs Application seeks, first, an order that Moorebank's costs of the preliminary hearing of the separate question, that is the hearing before me on 29 and 31 August 2016, be paid by Benedict (the first and second applicants in proceedings 2016/00157848) and Council (the applicant in proceedings 2016/00159652). In addition, Moorebank seeks an order that Benedict pay its costs in relation to a discrete "jurisdictional" issue which was raised by Benedict at the substantive hearing (but was not the subject of any pleading or determination) which concerned whether the proposal was a "transitional Part 3A project" for the purposes of the Environmental Planning and Assessment Amendment (Pt 3A Repeal) Act 2011 (NSW) ('Repeal Act').
3. In summary, the Benedict Costs Application seeks an order, "[i]n the event that the Court makes an order …" in the Moorebank Costs Application, that Moorebank pay [Benedict's] costs in relation to two discrete issues referred to as the "issue estoppel" question and the "earlier undertaking" question, which were argued in the substantive hearing and determined in my judgment of 8 May 2017.

Principles

1. The power to award costs of the proceedings arises pursuant to s 98 of the Civil Procedure Act 2005 (NSW) ('Procedure Act') and Pt 3, r 3.7 of the Land and Environment Court Rules 2007 (NSW) ('Court Rules') which provide respectively: 98 Courts powers as to costs (cf Act No 52 1970, section 76; SCR Part 52A, rules 5, 6, 7 and 8; Act No 9 1973, section 148B; Act No 11 1970, section 34) (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. ... 3.7 Costs in certain proceedings (cf Land and Environment Court Rules 1996, Part 16, rule 4) (1) This rule applies to the following proceedings (except for appeals under section 56A of the Act): (a) all proceedings in Class 1 of the Court's jurisdiction, ... (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following: (a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question: (i) in one way was, or was potentially, determinative of the proceedings, and (ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, ... (d) that a party has acted unreasonably in the conduct of the proceedings; ...
2. These proceedings are within Class 1 of the Court's jurisdiction (see Land and Environment Court Act 1979 (NSW), s 17(d)).
3. The key principles relating to the award of costs in this Court were noted by Sheahan J in Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 ('Dunford v Gosford City Council') at [30] as follows: … a. Rule 3.7(2) creates a basic rule where there is a presumption against the making of an order for costs [Port Stephens Council v Sansom ("Sansom") [2007] NSWCA 299; (2007) 156 LGERA 125 at [48]]. b. The effect of the basic rule in r 3.7(2) is that, in the ordinary course, costs will lie where they fall [Agonic Holdings Pty Ltd v Lithgow City Council [2009] NSWLEC 34 at [5] per Biscoe J]. c. The question then is whether, despite the basic rule, it is "fair and reasonable" that a party should be reimbursed for the costs it incurred [Sansom at [50]]. d. The formulation -"fair and reasonable" - calls for a judgment to be made, rather than as a discretion to be exercised, but in any event the evaluative process can be accurately described as conferring a wide discretion [Sansom at [51]]. e. Rule 3.7(3) identifies, without limitation, some circumstances in which the Court might consider the making of a costs order to be fair and reasonable [Pet Carriers International Pty Ltd v Botany Bay [City] Council (No. 2) [2013] NSWLEC 150 at [4] per Preston CJ]. f. The circumstances identified in r 3.7(3) may rebut the presumption in r3.7(2) and may inform the Court's discretion but are neither prescriptive nor exhaustive [Pepperwood Ridge Pty Ltd v Newcastle City Council [2008] NSWLEC 196; 160 LGERA 164 at [73] per Biscoe J; Hillsong Church Limited v Council of the City of Sydney (No. 2) [2012] NSWLEC 118 at [55] per Pepper J].
4. The starting point is the presumptive rule that there be no order for costs in Class 3 proceedings. As stated in Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 ('Arden Anglican School') at [10] per Biscoe J: One of the purposes of the costs follow the event rule in ordinary civil litigation is to encourage the parties to settle their disputes: Sansom at [26]; Thaina at [65]. In contrast, a no discouragement principle underlies the no costs rule in planning appeals, that is, that persons generally should not be discouraged from exercising their rights of appeal via the prospect of an adverse costs order: Sansom at [22]-[23]. This may be rationalised on the bases that a significant purpose of planning appeals is to improve the decision-making process and that those involved are not adversaries in the same sense as adversaries in conventional civil litigation. Spigelman CJ explained this in Sansom at [71]-[74]: ... [72] In my opinion, a significant purpose served by planning appeals is to improve the quality of the decision-making process. This is a purpose which any statutory consent authority should be presumed to be anxious to achieve as an incident of its exercise of the statutory powers which Parliament has reposed in it. Individuals and corporations who challenge such decisions do not have the same obligations. They do, however, have a legitimate expectation that the decision-making process will result in the correct or preferable decision. [73] One of the critical differences between ordinary civil litigation and planning appeals is the absence of a reciprocal relationship between the interests of the parties. They are not, or should not be, adversaries in the sense that can be said of the usual kind of civil litigation in courts. ...
5. Despite this presumptive rule, now encapsulated in r 3.7(2) of the Court Rules, r 3.7(3) of the Court Rules sets out certain circumstances in which the Court may find that it is "fair and reasonable" to award costs in Class 3 proceedings. The circumstances provided in r 3.7(3) of the Court Rules are similar to the indicative guidelines formulated under the earlier rule (Part 16 Rule 4 of the Land and Environment Court Rules 1996 (NSW)) in Grant v Kiama Municipal Council [2006] NSWLEC 70 ('Grant') at [15] and approved by the Court of Appeal in Port Stephens Council v Sansom [2007] NSWCA 299; (2007) 156 LGERA 125 ('Sansom') at [56]. I note and adopt Sheahan J's comments in Dunford v Gosford City Council at [30] that these circumstances are neither prescriptive nor exhaustive.

Evidence

1. The costs applications were heard on 23 June 2017.
2. Benedict relied upon a bundle of documents (Exhibit A) comprising correspondence in relation to the costs applications; the Notice of Motion filed by Moorebank on 20 July 2016 seeking an order for the separate question; the transcript of the hearing before Sheahan J on 26 July 2016 on the Notice of Motion seeking the separate question; an affidavit of Mark Gerard McDonald sworn 20 July 2016 (read in support of the separate question Notice of Motion), the Notice of Motion filed by Moorebank on 5 October 2016 seeking leave to "modify the project", an affidavit of Neil Richard Kennan sworn 5 October 2016 (prepared in support of the Motion to modify the proposal), and the transcript of a case management hearing before me on 5 October 2016.
3. Council read an affidavit of Christine Cunningham sworn 2 July 2017.
4. Moorebank tendered a copy of draft without prejudice Conditions of Approval (version dated 28 October 2016 (Exhibit 1)); and read the affidavit of Mark Gerard McDonald sworn 23 May 2017.
5. In addition to the evidence and the receipt of the detailed oral submissions on 23 June 2017, I received seven sets of written submissions, being submissions of Moorebank dated 8 June 2017, 22 June 2017 and 11 July 2017; of Council dated 16 June 2017 and 28 June 2017; and of Benedict dated 16 June 2017 and 3 July 2017.

Separate question

1. Prior to the substantive hearing in October and November 2016, a hearing in relation to a separate question (ordered by Sheahan J on 26 July 2016) proceeded before me on 29 and 31 August 2016. The separate question was: Whether building, engineering or construction work relating to the work the subject of Development Consent No. DA 1417/05 granted by Liverpool City Council on 29 June 2006 in respect of the property at Lot 6 in DP 1065574 was physically commenced for the purposes of s 95(4) of the Environmental Planning and Assessment Act 1979 prior to 27 June 2009.
2. In summary, the applicants in each of the objector appeals (Benedict and Council respectively), contended that an earlier development consent granted to Moorebank by Council for "bulk earthworks" on the site on 29 June 2006 ('earthworks consent') had lapsed because there had been no physical commencement, on or before 27 June 2009. For reasons set out in my judgment given on 16 September 2016 (Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd [2016] NSWLEC 122), I concluded that engineering and construction works relating to the development consent of 29 June 2006 were physically commenced prior to 27 June 2009 and accordingly that the earthworks consent had not lapsed.

Moorebank's position

1. Moorebank submits the separate question arose from a contention in each of Council and Benedict's Statements of Facts and Contentions that the earthworks consent had lapsed. Importantly, the proposal before the PAC had proceeded on the basis that the works the subject of the earthworks consent would be carried out, assuming therefore that the earthworks consent was still on foot. Once the contention had been identified by Benedict and Council, Moorebank submits that it raised the issue in correspondence on 13 July 2016, seeking to confirm whether the contention that the earthworks consent had lapsed was pressed. Moorebank then filed its Notice of Motion seeking determination of the separate question, which was ordered by Sheahan J on 26 July 2016.
2. In the circumstances, Moorebank submits that the hearing of the separate question falls within r 3.7(3)(a) of the Court Rules because: 1. It involved as a separate issue a question of mixed fact and law i.e. determining whether the earthworks consent had been physically commenced within the meaning of s 95(4) of the EPA Act. 2. The hearing was at least "potentially" determinative of the proceedings, as relying upon the evidence of Mr McDonald, the carrying out of the works the subject of the earthworks consent was necessary to enable the (later) construction of the MRF. 3. The determination of the separate question did not involve any evaluation of the merits dealt with in the substantive appeals, and the evidence and submissions were discrete. 4. The hearing was fully contested, with cross-examination relating to a Part 3A development of State significance, and raising complex issues resulting in a detailed judgment. 5. Given the lengthy litigation background between Moorebank and Benedict involving "numerous Court proceedings", the dispute was more akin to "commercial litigation" between the parties rather than the more usual case of a merits appeal between a developer and a consent authority. Additionally, Council had "in more recent times" adopted an adversarial role. 6. In reply to the submissions of each of Benedict and Council regarding Moorebank's delay in bringing the Motion (noted below), Moorebank submits that this is no reason to deprive it of its costs because any alleged delay did not affect the determination of the issue. 7. Further, in response to Benedict and Council's submission that there was no real utility in the determination of the separate question having regard to the possibility that the works the subject of the earthworks consent may not have been required, Moorebank submits that it had not sought to amend its project application in the manner suggested, and that it is wrong for Council to submit that the plans that were before the Court in the substantive proceedings superseded the works provided for in the earthworks consent. 8. Benedict and Council had knowledge of work undertaken on the site in 2006 constituting physical commencement, because it was referenced in an expert report (being an environmental assessment) of Dr Sophie Wood prepared for Moorebank and provided to Benedict and Council. 9. Finally, in response to whether the separate question was (or would have been) "determinative" and Council and Benedict's submission that there could have been an amendment to the project application had the earthworks consent been found to have lapsed, Moorebank submits that there would have been "very good reason" for the Court to refuse to grant approval to the project application if the earthworks consent had lapsed such that the Court may have found that the MRF could not have been constructed as a practical matter.

Benedict's position

1. Benedict's primary position in relation to both costs applications is that the Court should make no order for costs in favour of any party, with the effect that each party bear its own costs of the proceedings. It submits that: 1. Despite the proceedings concerning a (Class 1) merits appeal, each of Benedict, Moorebank and Council raised a number of legal issues which were argued and determined, including: 1. first, whether the earthworks consent had lapsed; 2. second, whether parties (in particular Benedict) were bound by an "issue estoppel" in relation to issues considered and determined by Biscoe J in Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93 ('Moorebank 88K Proceedings'); and 3. third, whether Benedict was precluded from raising certain contentions and adducing certain evidence because of an undertaking given by Tanlane in the Moorebank 88K Proceedings. 1. Moorebank was successful on the first issue and Benedict was successful on the second and third issues. As such, because each party raised various issues and each party succeeded on some issues the Court should make no order as to costs. 2. Such an order is apposite where there is a long history of dispute between the parties. In any event, given that each party succeeded and failed on different legal issues, a costs order would likely be of "limited utility" to the parties. 3. The Court would not find the making of an order for costs to be fair and reasonable in the circumstances.
2. If the Court was against the submission that there be no order for costs, Benedict made submissions in relation to costs of the separate question as follows: 1. Council and Benedict first raised the issue of the lapsing of the earthworks consent in November 2015 and June 2016 respectively, and there was significant delay before Moorebank responded in July 2016. Moorebank was the only party who knew of the nature and extent of any work that had been carried out prior to the relevant lapsing date on 27 June 2009, and when Council asked for details of these works in its letter of 14 July 2016, Moorebank did not provide any evidence. In fact, Moorebank did not provide any evidence of works allegedly constituting physical commencement prior to the filing of its Notice of Motion on 20 July 2016. Accordingly, Benedict and Council were not in a position to determine from the evidence, or from their inspection of the land, that works constituting physical commencement had been carried out prior to 27 June 2009. Further, Moorebank's delay in responding to the issue of the lapsing of the earthworks consent when first raised, coupled with it "rushing off" to seek order for a preliminary determination, is indicative of unreasonable conduct on behalf of Moorebank. 2. The suggestion that Benedict (and/or Council) had acted unreasonably in the conduct of proceedings in relation to the separate question was raised for the first time in oral submissions at the hearing of the Notice of Motion on 23 June 2017, and should be rejected. The contention was based on the existence of an expert report prepared for Moorebank by Dr Sophie Wood (of 6 June 2016, Exhibit R5 in the substantive hearing), and the geotechnical work mentioned therein does not support the submission that Benedict knew or should have known in July 2016 either that the work referred to by Dr Wood had been carried out, or that it had triggered the earthworks consent. Further, the information was not supplied to Council in response to its 14 July 2016 request. On any view, Benedict's conduct could not in any way be described as unreasonable; rather the challenge to the validity of the earthworks consent by Benedict and Council was bona fide and entirely reasonable. 3. The basis for Moorebank's application for the determination of the separate question was "almost entirely for Moorebank's convenience". 4. The separate question was not determinative or indeed potentially determinative of the objector appeals because Moorebank could have simply amended its Pt 3A project application. 5. Neither Benedict nor Council consented to a hearing on the separate question, and the transcript before Sheahan J reveals that Council reiterated at the hearing on the Motion that it needed further information from Moorebank to determine whether its allegation regarding lapse should be maintained. Benedict also maintained at the hearing on the Motion that a hearing on the separate question would be "premature". 6. The separate question does not "fall squarely" into r 3.7(3)(a) of the Court Rules because the three "requirements" are not satisfied - the proceedings did not involve as a central issue a question of law, question of fact or a mixed question of law and fact; the determination was not determinative or potentially determinative of proceedings; and the determination does not involve any evaluation of the merits of any application. The separate question concerned largely factual issues which, if decided against Moorebank, would have required Moorebank to seek an amendment to its Pt 3A project application. 7. There was no utility in the separate question proceedings because Moorebank amended its Pt 3A project application plans. In any event, the conditions of approval (considered in the substantive proceedings) incorporated plans which were modified to include earthworks. As such, the hearing and determination of the separate question has been "entirely unnecessary".

Council's position

1. Council's primary position is that there should be no order for costs in relation to the separate question as the starting point for Class 1 proceedings is the presumptive rule that there should be no order, and there are no considerations of "significant weight to overcome the presumptive rule" (as per Spigelman CJ in Sansom at [48]).
2. However in response to Moorebank's submissions on the Moorebank Costs Application, Council, similar to Benedict, points to Moorebank's failure, despite Council's enquiries, to provide any evidence of works constituting physical commencement of the earthworks consent. Council also submits that its position before Sheahan J was that it neither consented to nor opposed the application, but rather emphasised that it required further information to make an "informed decision". Further, Council notes that some of the evidence ultimately relied upon in the judgement on the separate question, including "driveway works" submitted by Moorebank to demonstrate physical commencement of the earthworks consent, was only raised in oral evidence at the time of the hearing on the separate question.
3. In addition to the above, Council submits that the presumptive rule has not been replaced for the following reasons: 1. The separate question does not fall within the terms of r 3.7(3)(a) of the Court Rules as it was never a question that the lapse of the earthworks consent was "determinative" (i.e. it had not been raised as such in any SoFACs), and it in fact was not determinative in any event because the project plans were amended in relation to the earthworks (during the substantive hearing). 2. The determination of the separate question was not "even potentially" determinative as, pursuant to r 3.7(3)(a)(i) of the Court Rules, this requires at least a reasonable likelihood that a determinative consequence will occur. Benedict submits that this does not arise in the circumstances, given Moorebank had the ability to amend the project plans in the event that the Court found the earthworks consent had lapsed. 3. To the extent that Moorebank submits that the evidence, submissions and hearing of the separate question were discrete from the substantive proceedings, that is also not determinative of the costs application. Council also accepts that the separate question has not involved "an evaluation of the merits…", and says that this does not carry significant weight. 4. The fact that Moorebank submits that the hearing on the separate question was fully contested, and included cross-examination, should be accorded little weight. Similarly, little weight should be given to Moorebank's submission that the issues were "complex and the judgement had 111 paragraphs", which is not in any event a circumstance described in r 3.7(3)(b)-(h) of the Court Rules. 5. Further Moorebank's submission that the appeals were related to a Part 3A development of State significance is also a matter to which little weight should be given because, again, this is not a matter described in r 3.7(3)(b)-(h) of the Court Rules and is contrary to the matters considered by Barrett JA in Community Association DP270253 v Woollahra Municipal Council [2015] NSWCA 80; (2015) 207 LGERA 268. 6. There is no basis in the suggestion that Council has "in more recent times" adopted an adversarial role as submitted by Moorebank, which again is not a circumstance described in r 3.7(3)(b)-(f) of the Court Rules. 7. Moorebank's submission in relation to the evidence of Dr Wood regarding works undertaken earlier at the site, and the evidence of Mr McDonald that the separate question would have been determinative, should not be given significant weight. First, Council should not have been expected to rely upon Dr Wood's report, and second, Moorebank's submission should be seen in light of the fact that Council had clearly sought details from Moorebank to make good the allegation of physical commencement.

Jurisdictional issue - whether transitional Part 3A project

1. The background to this aspect can be briefly stated: 1. Part 3A of the EPA Act was repealed on 1 October 2011 by the Repeal Act and transitional provisions were introduced in Schedule 6A of the EPA Act enabling what were described as "transitional Part 3A projects" to continue to be the subject of the EPA Act in its unamended form. 2. In the substantive proceedings, Benedict filed and served a report of their planning expert Paul Mitchell. Although not raised in any of the SoFACs, Mr Mitchell contended that the proposal was not a "transitional Part 3A project" because of the failure to meet the requirements for cl 2(1) of Schedule 6A of the Repeal Act. 3. Although the jurisdictional issue was thus first raised by Mr Mitchell in his report, Benedict notified Moorebank during the week before the substantive hearing that they proposed to pursue the issue whether by way of separate Class 4 proceedings or otherwise. 4. The issue was raised at a pre-trial directions hearing on 5 October 2016 and I gave a direction that Benedict formulate with precision the "jurisdictional issue" which it sought to be determined and to provide such formulation to the other parties by 4:00pm 6 October 2016. Relevantly, the hearing was to commence on 10 October 2016. 5. On the afternoon of 6 October 2016, Benedict notified the other parties that it did not seek to argue the jurisdictional issue.

Moorebank's position

1. Moorebank now claims costs which were expended in preparing submissions on the jurisdictional issue (a draft copy of which were appended to Moorebank's submissions dated 8 June 2016 in these costs proceedings) and submits: 1. the work undertaken was necessary because the issue was raised late and it went to the "heart of the Court's jurisdiction" to hear the objector appeals; and 2. senior and junior counsel were "diverted from preparing for the hearing of the appeal".
2. Moorebank relies upon r 3.7(3)(a) of the Court Rules on the basis that Benedict had raised a legal issue that went to the Court's jurisdiction to determine the appeal, which would have been determinative had the allegation been upheld, and it did not involve an evaluation of the merits of the appeal. Further, Moorebank submits that it was unreasonable for Benedict to raise the issue the week prior to the commencement of the hearing.

Benedict's position

1. Benedict submits that Moorebank's application for costs of the jurisdictional issue should be rejected because the circumstances surrounding the issue were that, although Mr Mitchell had raised the matter independently in his expert report, Moorebank's town planning expert, Neil Kennan had also dealt with it in his expert report, and the planning experts further dealt with the issue in their joint report.
2. Benedict further submits that while the jurisdictional issue was raised by Benedict's expert Mr Mitchell in his report, it was never formally raised in the proceedings by Benedict at any time. Rather Benedict indicated to Moorebank that it intended to raise the issue with the Court at the directions hearing, and sought "input" in relation to "a preferred option for the resolution of the issue".
3. In any case, Benedict submits that having been given a direction by the Court, on the morning of 6 October 2016, the Minister produced documents for inspection by the parties which clarified the issue. Accordingly, later that day, before the 4:00pm deadline, Benedict informed the other parties that in the light of the information produced by the Minister, the issue was not to be further raised.
4. Apart from the above, Benedict submits that the Court was never seised of the jurisdictional issue in the proceedings, which as a matter of general principle, would occur were a court to award costs in respect of a particular issue. Further, relying on Immigration and Ethnic Affairs, Re Minister for; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 at 624 Benedict submits that in circumstances where a particular issue does not proceed to trial, the Court is not required to try the hypothetical action so as to determine costs.
5. In summary, Benedict submits that the issue was never "raised" before the Court, nor was it therefore ever "abandoned", and accordingly there is no basis for the Court awarding costs to Moorebank in respect of the jurisdictional issue.

Benedict's Costs Application

1. I dealt with the "issue estoppel" and "undertaking" issues at [57]-[65] of the judgment. By way of background, in its outline of written submissions served a few days before the substantive hearing commenced, Moorebank submitted that a number of planning issues before the Court had been agitated in the Moorebank 88K Proceedings before Biscoe J and that his Honour's findings bound this Court by way of issue estoppel. In addition, and as a separate matter, Moorebank submitted that Benedict should not be permitted to raise certain contentions (primarily in relation to traffic matters) because of the particular terms in the conditions of an earlier easement ('Tanlane Easement') and because of an undertaking given by Tanlane in orders made by Biscoe J in the 88K Proceedings ('Tanlane Undertaking'). The effect of this undertaking, Moorebank submitted in the substantive hearings, was to impose an obligation on Benedict not to raise issues concerning traffic. Further, Moorebank submitted that by raising those contentions Benedict was adopting a position inconsistent with that which it had taken in earlier proceedings.
2. In response, Benedict took the view that first, Moorebank should not be allowed to raise these complaints as late as it did - during opening submissions - and second, Biscoe J had not "conclusively determined" any of the planning issues that were relevant to the Court's consideration of the proposal.
3. At [64] of the judgment I found that the words of the Tanlane Easement and the Tanlane Undertaking as well as the conduct of and decision in the Moorebank 88K Proceedings, did not prevent the issues being raised by Benedict and Council. Accordingly, I found, that both Benedict and Council were entitled to advance contentions and call evidence in relation to traffic and other impacts.

Benedict's position

1. As noted at [24] above, Benedict's primary position is that no costs order should be made. However, if I were of the view that it was appropriate to make a costs order in respect of the Moorebank Costs Application, Benedict then relies on r 3.7(3)(c) and (d) of the Court Rules to seek their costs of the "issue estoppel" and "undertaking issues". To support these costs orders, Benedict makes the following submissions: 1. Unlike the ("transitional Part 3A project") jurisdictional issue, the issue estoppel and undertaking issues were heard and determined by the Court and Moorebank was unsuccessful in relation to both. Each issue required extensive written submissions, and significant time, expense and effort was expended arguing those matters. 2. Moorebank's conduct was unreasonable as no prior notice had been given of the issues, and as a result by the time these issues were raised, the traffic experts (and others) had already met and prepared joint reports. Accordingly Benedict submitted that Moorebank's conduct was an attempt to exclude expert evidence, and the Court would not (and indeed ultimately did not) entertain the issue estoppel argument at such a late stage. 3. Moorebank's conduct in pursuing these issues was also unreasonable because the claims had no reasonable prospect of success primarily because they were raised so late in the proceedings.

Moorebank's position

1. Moorebank submits that it is important to note that the issue estoppel and the undertaking issues were "distinct" issues, although dealt with together in the substantive hearing. The issue estoppel related to whether the Court was bound by certain findings made on town planning issues by Biscoe J in the Moorebank 88K Proceedings. The undertaking issue concerned whether Benedict was bound by the terms of an undertaking given to the Court not to advance certain traffic contentions.
2. In relation to the issue estoppel, Moorebank submits that its attempt to elevate the findings of Biscoe J to the status of the issue estoppel was not unreasonable, particularly in circumstances where the issue of the persuasiveness of those findings would have arisen in any event.
3. In relation to the undertaking issue, Moorebank says the matter was arguable and the findings by the Court in the Moorebank 88K Proceedings do not change this position.
4. Although Moorebank accepts that the undertaking issue could have been raised at an earlier stage, it submits that any delay had no consequence, such that it cannot be suggested that Benedict would have done anything differently. Further, Moorebank submits that no additional costs were incurred by Benedict because of the late raising of the issue.

General

1. In the context of the presumptive rule that there will be no order as to costs in planning appeals and considering the principles dealt with at [10]-[14] above, the power to make a costs order is in the broadest terms, requiring consideration of what is "fair and reasonable in the circumstances". As noted by Biscoe J in Arden Anglican School at [9]: …All rational considerations are relevant to the formulation of that judgment. In the end, the question is whether, in the opinion of the Court, they are of sufficient weight to overcome the presumptive rule. Indicative guidelines for the exercise of the discretion are useful in promoting consistent decisions, but are not entitled to presumptive, let alone determinative, weight…
2. I shall consider each of the costs applications separately however as will be seen, I take into account the fact that each of the discrete issues the subject of the costs applications were in fact part of the same planning appeal proceedings. I am also aware that the Benedict Costs Application only seeks relief if I make an order in the Moorebank Costs Application.

Separate question

1. Whilst I accept that the separate question was one of mixed fact and law, that could have been "potentially" determinative, did not involve an evaluation of merits, and was successfully argued by Moorebank; I do not regard these matters as determinative in Moorebank's favour.
2. In relation to r 3.7(3)(a) of the Court Rules, it is clear that the separate question was not determinative of the proceedings. Moorebank did however contend that the separate question was at least potentially determinative of the proceedings, as a finding that the earthworks consent had lapsed would mean that the development could not be constructed, and it would have been necessary to amend the project application accordingly. While Benedict and Council submit that the availability of amending the application is indicative that the separate question was not determinative or potentially determinative of the proceedings, I am mindful of Moorebank's submission that it was not a given that leave would be granted to amend the project application, and in this sense the separate question was at least potentially determinative of the proceedings. In any case, despite the matter not being without some doubt, I am cognisant of Biscoe J's observation in Dunford v Gosford City Council at [30] that the circumstances identified in r 3.7(3) of the Court Rules are neither prescriptive nor exhaustive. In the circumstances, and exercising my evaluative judgment, I am not satisfied that the circumstances are of sufficient weight so as to overcome the presumptive rule against costs in Class 1 proceedings.
3. While not submitted that Benedict or Council acted unreasonably for the purposes of r 3.7(3)(d) of the Court Rules, Moorebank did level some criticism at Benedict and Council for raising the issue of the lapse of the earthworks consent in their respective SoFACs and failing to consider the evidence in the evidence of Dr Wood. I find that it was not unreasonable for Council to request the material relied upon by Moorebank to demonstrate physical commencement, noting of course that the knowledge of any such work resided primarily, if not solely, with Moorebank. This was particularly so considering that any such work would have been undertaken some years beforehand and, as was clear from the evidence marshalled at the hearing of the separate question, the work was of a type and nature that may not have been obvious to any unrelated observer.
4. In opposing the Moorebank Costs Application, both Benedict and Council made submissions regarding Moorebank's delay in responding to the issue of lapse once raised, and its failure to respond to correspondence seeking clarification of the works alleged to have constituted physical commencement of the earthworks consent. Further, Benedict and Council criticised Moorebank for having filed its Notice of Motion relatively quickly after first engaging with the issue of lapse, and again before providing any information to Benedict and Council which they submit, may have avoided the need for the hearing on the separate question. I accept that Moorebank's conduct was unsatisfactory from Benedict and Council's point of view, and that the delay in responding to the issue once raised and the then filing of the Notice of Motion made it difficult for Benedict and Council to properly satisfy themselves that the earthworks consent had been physically commenced. Indeed it is in the interests of justice, both for the Court and the parties, for parties to engage in frank dialogue in attempt to resolve issues before they come before the Court.
5. Putting the delay aside, given the significance of the issue raised by Benedict and Council, I find that Moorebank's conduct in a practical sense was understandable, as it obviously desired a quick determination of the matter given that, if the Court found that the earthworks consent had lapsed, Moorebank would have been required to act relatively quickly to amend the project application. In that sense, while I accept Benedict's submission that the separate determination was, at least to some extent, "for Moorebank's convenience", I consider Moorebank's conduct in filing the Notice of Motion expeditiously to be understandable in the circumstances.
6. It is clear that the separate question was a discrete legal issue that, as Moorebank submits, did not result in overlap in the evidence or submissions for the substantive hearing. I further take into account the general character of the dispute between the parties, being characterised by lengthy, adversarial proceedings spanning a number of years. While Class 1 proceedings generally involve a litigant bringing proceedings against a consent authority, I note that the present dispute is primarily one between two sophisticated commercial entities. However, whilst I accept that there is authority for treating certain matters dealt with as preliminary/ separate questions as exceptions to the presumptive rule, and that there are certain considerations that could be seen to fall obliquely within some of the circumstances in r 3.7(3)(a) of the Court Rules, taking into account the circumstances as a whole and particularly the facts surrounding the raising of the separate question, I am of the opinion that it is not fair and reasonable to order costs against Benedict and/or Council for the separate question.

Jurisdictional issue - transitional Part 3A project

1. As noted above, the suggestion that the project was not a "transitional Part 3A project" had not been raised until the expert planning report prepared by Mr Mitchell was made available. Although it is correct, as Moorebank submits, that Mr Kennan in his expert report filed on 19 September 2016 in the substantive hearing (Exhibit R20, at p 7), acknowledges that Mr Mitchell "…concludes that the proposed development is not a transitional Part 3A project", apart from one further paragraph expressing his own understanding of the matter, there was little further response from Mr Kennan in relation to Mr Mitchell's suggestion.
2. While it is technically correct therefore that the jurisdictional issue was "raised" in a town planning report, and, to some limited extent considered by the town planning experts, it was not raised as a contention in any of the SoFACs and accordingly was not formally raised as an issue in the proceedings.
3. Further, it was only at the pre-trial directions hearing, some days before the commencement of the substantive hearing, that the Court became aware of the potential issue and that it was jurisdictional in nature. I accept that Moorebank thereafter expended some time and costs in urgently preparing to meet the issue which, although not formally raised, was relatively quickly abandoned by Benedict. However I accept and am satisfied by Benedict's explanation of the abandonment - that documentation had been very recently produced by the Minister for inspection and satisfied Benedict that the issue should not to be further canvassed.
4. I find the conduct of Benedict, being its awareness of Mr Mitchell's view, its failure to raise the jurisdictional issue as a discrete contention and then, very shortly before the hearing, raising the matter, only to abandon the matter some days later, is of concern. However, in all of the circumstances, I do not consider it fair and reasonable to order costs, primarily because the matter was not one of which the Court was properly seised. Further, as submitted by Benedict, it was not an issue that was heard and determined by the Court in any event. Whilst I accept that this is not determinative, and the Court has indeed awarded costs in respect of issues that have not been heard and determined (see e.g. Immigration and Ethnic Affairs, Re Minister for; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 at 624), in considering the whole of the conduct of the proceedings (in particular the conduct of Benedict and Moorebank) and the various issues raised and extensive evidence marshalled, I find the circumstances, whilst somewhat unsatisfactory, are not such as to oust the presumptive rule. Accordingly, I find it is not fair and reasonable to make a separate order of costs in relation to this discrete matter.

Issue estoppel and earlier undertaking

1. Although my findings in relation to the Moorebank Costs Application may render the Benedict Costs Application otiose, and noting Benedict's primary position that the Court should make no order for costs, given that the Benedict Costs Application is a separate Notice of Motion I shall nevertheless consider the submissions.
2. I accept that each of the issue estoppel and earlier undertaking submissions were heard and determined in the substantive proceedings in circumstances where no notice had been given to Benedict or Council until Moorebank's opening submissions had been provided. I find this conduct unsatisfactory in circumstances where the preparation of expert evidence and the expert joint conferencing had progressed without any indication that Moorebank intended to raise these issues, and there was nothing preventing Moorebank from raising the issues earlier. It is also correct that Moorebank was unsuccessful in relation to each of these issues.
3. However the question for present purposes is whether, in the circumstances, it is fair and reasonable to order that Moorebank pay Benedict's costs. Whilst it is prima facie unreasonable for the issues to be raised as late as they were, and noting that both issues were primarily legal issues being raised in the context of Class 1 proceedings, I am not satisfied, for the reasons set out below, that these circumstances are of sufficient weight to overcome the presumptive rule. 1. First, the lateness of the raising of the issues aside, I accept that despite finding against Moorebank in relation to each issue, both issues were significant concerns, properly arguable and relevant to and arising from the earlier hard-fought litigation between the parties. In that sense they were issues that needed to be determined by the Court. 2. Second, while the raising of legal issues in Class 1 proceedings may weigh against the presumptive rule in relation to costs, I take into account the overall conduct of the proceedings and the fact that, as submitted by Benedict in relation to both costs applications, each of Council, Benedict and Moorebank raised a number of legal issues which were argued and determined (including the earthworks consent, the "issue estoppel" and the "earlier undertaking") with mixed success. 3. Third, even if Moorebank had been successful in either of the issues, that would not necessarily have been determinative (or even potentially determinative) of the proceedings in circumstances where there were a number of separate issues which remained to be agitated and determined.

Conclusion

1. The dispute between these parties has continued over a number of years, involved numerous proceedings, and has resulted in significant expenditure of cost and time. The particular issues that Moorebank and Benedict have identified as attracting a costs order were discrete issues and should be viewed in the context of the complexity of the substantive proceedings, noting also that the substantive proceedings before me were just one of many hearings between Moorebank, Benedict and Council. Apart from the reasoning above, given that each party in the substantive proceedings before me succeeded and failed on different legal issues over the course of the proceedings, and given the competing costs applications, there is little utility in awarding either party its costs as sought. In light of the litigation history and the respective conduct of the parties, and given the presumption against costs in Class 1 proceedings, I consider it appropriate that there be no order for costs, but rather that the parties bear the costs of this lengthy litigation.

ORDERS

1. The orders of the Court are: 1. The Notice of Motion filed by Moorebank Recyclers Pty Limited dated 6 July 2017 is dismissed. 2. The Notice of Motion filed by Benedict Industries Pty Ltd and Tanlane Pty Ltd dated 5 July 2017 is dismissed.

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: 21 September 2017