Maurici v Chief Commisssioner of State Revenue

19 On 1 November 1999 the applicant lodged an appeal from the Commissioner's decision. 20 The appeal was heard by Cowdroy J on 10 December 1999: Maurici v Chief Commissioner of State Revenue (1999) 105 LGERA 318. His Honour: (a) found for the applicant on each of the retaining wall issue and the scarcity factor issue; (b) found for the respondent on the methodology issue; (c) upheld the appeal with costs; and (d) remitted the proceedings to Commissioner Nott for re-hearing. 21 On 3 December 1999 the applicant applied for an order that the respondent pay the costs of the first hearing before Commissioner Nott. 22 On 14 April 2000 Lloyd J delivered judgment dismissing the applicant's application for costs of the first hearing before Commissioner Nott: Maurici v Chief Commissioner of State Revenue (No 3) (2000) 107 LGERA 222. 23 Lloyd J held that the established principles in respect of the exercise of the Land and Environment Court's discretion to order costs in class 3 proceedings were described in paragraph 10A of the practice direction then in force, namely Practice Direction 1993. 24 The applicant appealed to the Court of Appeal in respect of Lloyd J's first judgment, and in respect of one part of Cowdroy J's judgment relating to the methodology issue. The respondent appealed from Cowdroy J's orders upholding the applicant's appeal from the decision of Commissioner Nott. 25 On 20 June 2001 the Court of Appeal delivered its reasons for judgment: Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673. It dismissed the applicant's substantive appeal; allowed the respondent's substantive appeal; and allowed the applicant's appeal from Lloyd J's first judgment on costs, thereby remitting the issue of costs of the first hearing before Commissioner Nott to the Land and Environment Court for further hearing. 26 On 14 August 2001, the applicant filed an application for special leave to appeal to the High Court with respect to part of the Court of Appeal's decision relating to the scarcity factor issue. 27 On 18 October 2001, Lloyd J heard the remitted hearing of the application by the applicant for the costs of the first hearing before Commissioner Nott. 28 On 14 December 2001, Lloyd J delivered judgment (his second) again dismissing the applicant's application for the costs of the first hearing before Commissioner Nott: Maurici v Chief Commissioner of State Revenue (No 5) (2001) 119 LGERA 395. 29 On 5 March 2002, special leave to appeal was granted by the High Court, and the appeal was heard by the High Court on 4 October 2002. 30 On 13 February 2003, the High Court in Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111: (a) allowed the appeal; (b) ordered that the respondent pay the costs of the appeal to the High Court and the Court of Appeal; and (c) remitted the matter to Commissioner Nott for determination in accordance with the High Court's decision. 31 On 2 February 2004 Part 16 rule 4 of the Land and Environment Court Rules 1996 commenced. 32 The remittal hearing, which was a rehearing with both parties presenting new evidence and arguments, was heard by Commissioner Nott over eight days on 26 to 30 July and 9, 10 and 31 August 2004. 33 On 10 February 2005, Commissioner Nott, in a judgment of 114 pages (his second), allowed the appeal, finding that the land value was $1,890,000: Maurici v Chief Commissioner of State Revenue (2005) 58 ATR 332; [2005] NSWLEC 20. 34 On 9 March 2005, the applicant lodged an appeal in respect of Commissioner Nott's second judgment. The appeal was heard by Talbot J on 5 August 2005. 35 On 7 October 2005, Talbot J dismissed the appeal with costs: Maurici v Chief Commissioner of State Revenue (2005) 142 LGERA 315. 36 On 9 November 2005, the applicant applied for an order that the respondent pay the costs of the second hearing before Commissioner Nott. 37 On 31 May 2006 consent orders were made: (a) discontinuing the appeal to the Court of Appeal with respect to Lloyd J's second judgment; (b) setting aside the orders made by Lloyd J in his second judgment; and (c) ordering that the applicant's costs applications with respect to Commissioner Nott's first hearing and second hearing be heard concurrently. 38 Those two costs applications are now before me. 39 The net effect of the substantive proceedings was that the applicant succeeded in having the land value reduced to $1.89 million from the original valuation of $2.44 million and from the respondent's unaccepted 1999 settlement offer of $2 million. However he was unsuccessful in his contention that it should be reduced to $1.25 million or thereabouts.

Costs in merits review matters 40 The Land and Environment Court's civil jurisdiction broadly comprises conventional inter partes litigation, which is assigned to class 4 of the Court's jurisdiction, and administrative (merits) review litigation, which is concerned with merits appeals from public bodies and assigned to classes 1, 2 and 3 of the Court's jurisdiction: Court Act ss 17 - 20. As McClellan CJ at CL (a former Chief Judge of this Court) pointed out in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323 at [225] - [227], the usual practice of administrative review tribunals is to make no order for costs and that was the usual practice of the NSW Local Government Appeals Tribunal, whose jurisdiction this Court now exercises in classes 1 and 2 of its jurisdiction. In this Court also the preponderant approach was that costs were not generally awarded in administrative review matters. The rationale is that where an individual or corporation believes that an administrative decision which affects it is wrong, it should not be discouraged from seeking to have the decision reviewed by a concern that it may have to pay the costs of the decision-maker if the application fails: Residents Against Improper Development (above) at [231] per McClellan CJ at CL. 41 Section 69 of the Court Act was considered by the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72 in relation to conventional adversarial litigation in class 4 proceedings. In that case, the High Court confirmed that it is important to develop guidelines to guide the proper exercise of a costs discretion in order to avoid inconsistency and irrationality, provided that they do not harden into a fetter on the discretion or a rule of law: at [35] - [38], [65] - [66]. McHugh J (Brennan CJ agreeing) said at [72]: If discretions concerning costs are to be exercised consistently and rationally, it is essential that the courts formulate principles and guidelines that can be applied with precision in most cases. 42 The preponderant approach of this Court in administrative (merits) review cases came to be reflected in Practice Direction 1993, which provided that "The practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional" and Practice Direction 1996, which provided that "The practice of the Court is that no order for costs is made in valuation appeals, farmland rating appeals (and other rating appeals), and subdivision appeals in Class 3 of the Court's jurisdiction, unless the circumstances are exceptional'. The latter was relevant and in force when the applicant commenced these proceedings. It was criticised by the Court of Appeal in these proceedings in Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673 at [44] on the basis that it purported to impose a "rigid fetter on the judicial discretion as to costs conferred by s 69(2)". As a result the Practice Direction came to be recognised as probably invalid. The invalidity arose not because it reflected an impermissible policy, but because it imposed an impermissible fetter on the discretion of the Court to make an order for costs as provided by s 69(2): Residents Against Improper Development (above) at [226] per McClellan CJ at CL. It has been said that it must follow from the decision of the Court of Appeal in Maurici that case law in this Court which reflected the operation of the Practice Direction should be treated with great caution: Hunter Development Brokerage Pty Ltd v Cessnock City Council (No 2) [2006] NSWCA 292 at [35]. 43 On the remitter of the costs issue by the Court of Appeal to Lloyd J, his Honour said in his second judgment that he would ignore the Practice Direction, which had been "effectively set aside" as an impermissible fetter on the exercise of the discretion as to costs conferred by s 69(2): Maurici v Chief Commissioner of State Revenue (No 5) (2001) 119 LGERA 395 at [12]. Lloyd J held at [23]: In my opinion, in the exercise of the Court's unfettered discretion under s 69(2) of the Land and Environment Court Act and having regard to: (1) the fact that the proceeding is to be regarded as an administrative appeal; (2) that the preponderant weight of authority in this Court (pre-dating cl 10A of the Land and Environment Court Practice Direction 1996 ) is that costs are not generally awarded in such administrative appeals; (3) that the ordering of costs would present prospective applicants with the unpalatable prospect of not only meeting their own costs but also the costs of the respondent if they were unsuccessful; and (4) the particular facts and circumstances of the present case… I am inclined to the view that there should be no order as to costs. 44 The Report of the Land and Environment Court Working Party published in September 2001, after the Court of Appeal decision in Maurici was handed down, recommended that a rule be made with respect to costs in classes 1, 2 and 3 of the Court's jurisdiction in terms which are now to be found in Part 16 rule 4(2). This rule, which applies to prescribed matters in those classes, was gazetted on 19 December 2003 and commenced operation on 2 February 2004. It provides: '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'. 45 Writing before the introduction of Part 16 rule 4(2), but after the Court of Appeal decision in Maurici, McClellan CJ held in Gee v Port Stephens Council (2003) 131 LGERA 325 at [60] that where a council chooses to put in issue its capacity for approval in a class 1 appeal by raising a preliminary question of law (or of fact and law), the usual approach of no costs in class 1 appeals was inappropriate. His Honour considered that the usual order in such a case should be that costs follow the event. The reason is that such a question raises matters appropriate for ordinary litigation and seeks to avoid consideration of the merits. His Honour noted a line of authority to the effect that the raising of a preliminary question of law is only a factor to be taken into account in considering whether there are exceptional circumstances, rather than usually leading to an order that costs follow the event. 46 Rule 4(2) maintains a general rule that there be no order for costs. It does not distinguish between the categories of administrative review proceedings to which it applies. However, its qualification to the general rule differs from the qualification to the general rule in the old Practice Direction ("unless the circumstances are exceptional") in two respects. First, it expressly requires the Court to have regard to "the circumstances of the particular case". This has been said to exclude "generalised approaches": Hunter Development (above) at [4] per Bryson JA. Secondly, it requires the Court to form a judgement as to whether the making of a costs order is "fair and reasonable" (in the circumstances of a particular case). This is a lower hurdle for departure from the general rule than the hurdle of the "exceptional circumstances" qualification in the old Practice Direction: Hunter Development at [39] per Basten JA (Santow and Bryson JJA agreeing). 47 The Court of Appeal held in AMP Henderson Global Investors v Valuer General (2004) 134 LGERA 426 at [81] that it would no longer be appropriate to take into account under Part 16 rule 4(2) that the preponderant weight of authority in this Court (predating the old Practice Direction) was that costs are not generally awarded in administrative appeals unless the particular facts warranted it. AMP Henderson is analogous to the present case. It was a valuation appeal in class 3 of the Court's jurisdiction. The hearing before the primary judge, Cowdroy J, concluded in December 2003 before the gazettal on 19 December 2003 of amendments to the Court Rules which introduced Part 16 rule 4(2) as from 2 February 2004. The primary judge delivered his judgment on the substantive issues on 18 February 2004: AMP Henderson Global Investors v Valuer General [2004] NSWLEC 19. Later, applying rule 4(2), he made an order which had the effect that each party would pay its own costs: AMP Henderson Global Investors Ltd v Valuer General (No 2) [2004] NSWLEC 344. His Honour set out the passage from the second judgment of Lloyd J in Maurici (No 5) at 401 [23] which I have quoted above. His Honour held that the Court has now to consider only one question, namely, whether it is fair and reasonable that an order for costs should be made; and that each of the matters identified by Lloyd J in Maurici (No 5) at 401 [23] (quoted above) are matters to be considered by the Court in the exercise of its discretion. On appeal, it was submitted that those four considerations enunciated by Lloyd J were inconsistent with the terms of rule 4 and that they, in effect, resurrected the Practice Direction which the Court of Appeal in Maurici had held to be an inadmissible fetter on the Court's general discretion to award costs pursuant to s 69(2). The appeal was dismissed. Tobias JA (with whom Mason P and Giles JA agreed) rejected the submission at [80] - [81]: [80] There is no doubt that the primary judge asked himself the right question, namely, whether it was fair and reasonable that an order for costs should be made in favour of the respondent against the appellants. Although he said (in [16]) that the issues identified by Lloyd J in Maurici (No 5) were matters to be considered by him in the exercise of his discretion, it is not apparent from [17] and [18] of the costs judgment that he did other than take into account the second and fourth matters referred to by Lloyd J, namely, the pre-practice direction position and the particular facts and circumstances of the case. There could be no objection to him doing so. His Honour, in my opinion, correctly referred to the fact that the proceedings had been conducted prior to the gazettal of rule 4, the hearing before him having concluded on 8 December 2003 at a time when, disregarding the practice direction, the preponderant weight of authority in the Court, as identified by Lloyd J in Maurici (No 5) , was that costs would not generally be awarded in valuation appeals.

[81] In my opinion, it was open to the primary judge to have regard to the second of the matters referred to by Lloyd J in Maurici (No 5) although I do not consider that that would be so in the future. But, in the present case the parties conducted themselves, so his Honour found, upon the basis of the court's practice which predated the practice direction. It was not suggested by the respondent that it was not open to his Honour to have adopted that view. Accordingly, in the particular circumstances of the present case I see no error in his Honour having had regard to the four considerations referred to by Lloyd J Maurici (No 5) although, as I have said, I do not consider that it would be appropriate in the future to take into account the second of those matters unless the particular facts warranted it. 48 Subsequently, the question of costs under Part 16 rule 4(2) was considered by Preston CJ in Kinder Investments Pty Ltd v Sydney City Council (2005) 143 LGERA 237, Grant v Kiama Municipal Council [2006] NSWLEC 70, Manly Warringah Rugby Leagues Club Pty Ltd v Warringah Council [2006] NSWLEC 88 and Telstra Corporation Ltd vHornsby Shire Council[2006] NSWLEC 285. In Grant at [15] Preston CJ concluded that an examination of the cases revealed a variety of circumstances where courts have considered that it would be fair and reasonable to make an order for costs, including the following: (a) where the proceedings cease to have the character of merits review, such as where a central issue is whether there is power to grant the approval sought at all; (b) where the matter the subject of the costs application involves only a preliminary question of law; (c) where a party fails to provide, or delays unreasonably in providing, information or documents required as part of the application for approval; (d) where a party has acted unreasonably in the conduct of the proceedings; (e) where a party has acted unreasonably in circumstances leading up to the proceedings, such as effectively inviting the litigation; (f) where the proceedings or the defence of the proceedings has been commenced or continued in circumstances where the applicant or respondent respectively, properly advised, should have known that it had no chance or very poor prospects of success; and (g) where a party conducts its case for an extraneous purpose. In Manly Warringah Rugby Leagues Club (above) at [12]-[14] Preston CJ refined his analysis and added to this list as follows: [12] The approach embodied in Part 16 r 4(2) of the Land and Environment Court Rules is that an order for costs will not be made in Class 1 proceedings, unless the Court considers the making of a costs order is, in the circumstances of a particular case, fair and reasonable: see Statewide Developments Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 353 (1 July 2005) at [4]; Aldi Foods Pty Limited v Holroyd City Council [2005] NSWLEC 338 (27 June 2005) at [5]; Hunter Development and Brokerage Pty Limited v Cessnock City Council [2005] NSWLEC 727 (16 December 2005) at [11]; and Grant v Kiama Municipal Council [2006] NSWLEC 70 at [12] - [14]. [13] A synthesis of these decisions results in the following reformulated principles: (a) In the specified proceedings in Classes 1, 2 and 3 to which Part 16 r 4 applies, there is a presumption that there will not ordinarily be any order for costs in the proceedings unless there is some circumstance which would make it fair and reasonable that there should be an order for costs; (b) Ordinarily, the filing of a notice of discontinuance without the consent of the other party to the litigation will be a circumstance which would make it fair and reasonable that there be an order for costs. This is because the discontinuance usually represents an abandonment of the applicant's claim, so that costs incurred by the other party are necessarily wasted or thrown away. (c) A relevant consideration in every case is whether the discontinuance was reasonable conduct on the part of the discontinuing party in the circumstances of the case, such as to negate the ordinary costs consequences of a discontinuance of the proceedings. Such conduct may be based on some action by the other party to the litigation or some supervening event beyond the parties' control. [14] These principles ought provide guidance in the exercise of the discretion to order costs in cases to which the principles are applicable, however, they do not fetter the discretion. As Lloyd J said in David Crane & Associates Pty Limited v Kogarah Council [1998] NSWLEC 121 (10 June 1998) at [4]: Whilst these principles generally govern the making of an order for costs in cases such as this, they are not hard and fast rules. If they were, then that would be contrary to the provisions of s 69(2) of the Land and Environment Court Act 1979, which gives the Court an unfettered discretion as to costs. They are merely principles which the Court has adopted as a guide to the exercise of the discretion which exists under that section. Moreover, the facts in each case are seldom the same. There may be special facts or circumstances which might justify departure from these principles in any particular case. 49 In the late Spring of 2006, there was disharmony within the Court of Appeal in a duo of cases, decided within a month of each other, as to whether under Part 16 rule 4(2) the distinction between a merits review by a commissioner and the hearing of a preliminary question of law by a judge is only a consideration of some importance, or whether the latter rises to a level that generally requires a costs follow the event order: Hunter Development Brokerage Pty Ltd v Cessnock City Council (No 2) [2006] NSWCA 292 where Basten JA (Santow and Bryson JJA agreeing) took the former view and Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323 where McClellan CJ at CL took the latter view. In the first case, the Court of Appeal dismissed an appeal against the primary judge's exercise of his discretion not to make an order for costs in favour of a successful applicant in class 1 proceedings. Basten JA disagreed with the pre-rule 4(2) reasoning of McClellan CJ in Gee to which I have earlier referred. However, significantly, Basten JA at [60] acknowledged the relevance and importance in a costs context of the distinction between a merits review by a commissioner and the hearing of a preliminary question of law by a judge. 50 In the second case, Residents Against Improper Development, there was an appeal in class 1 of the Court's jurisdiction against a deemed refusal by a council of a development application. At the same time the applicant filed a motion for determination of two preliminary questions of law, which were determined by Pain J. Thereafter there was a merits hearing before, and a determination by, a commissioner. The respondents appealed to the Court of Appeal against Pain J's determinations. The respondents succeeded, on the appeal, in having Pain J's determination as to one of the preliminary questions of law set aside. The effect of this was that the Commissioner's merits determination became invalid. Pain J's determination of the other question of law was, however, upheld by the Court of Appeal. The applicant was, to this extent, successful in the appeal proceedings. The Court of Appeal ordered each party to pay the other party's costs of that portion of the proceedings before Pain J in which they were ultimately unsuccessful on appeal, but decided that there should be no orders as to costs in relation to the hearing before the Commissioner. McClellan CJ at CL said at [252]: "As the proceedings before Pain J had the character of ordinary litigation, and were not merit review, I am satisfied that an order for costs in these proceedings should be made. In my opinion, it is fair and reasonable that orders should be made in those proceedings so that costs follow the event. I agree with the form of those orders as proposed by Tobias JA. I am also satisfied that in relation to the hearing before Commissioner Bly, which was confined to the merits, there should be no order as to costs." Tobias JA (with whom Giles JA agreed) said at [207]-[209]: I have already observed that in [252] of his reasons in the present case, McClellan CJ at CL has proposed that as the proceedings before the primary judge had the character of ordinary litigation and was not a merits review, his Honour was satisfied that an order for costs in the proceedings before her Honour should be made as it would be fair and reasonable in those proceedings that costs should follow the event. However, in the present case, it is sufficient to adopt the approach of Basten JA in Hunter Development as articulated in [60] of his Honour's judgment where he acknowledged the distinction (to which McClellan CJ at CL would give particular or even definitive weight) between the hearing of a preliminary question of law by a judge and a merits review by a commissioner as being a consideration of some importance although not one rising to a level requiring a particular result. Thus, in the present case I would regard the circumstances under which the preliminary question of law arose and were determined as justifying a finding that it would be fair and reasonable to depart from the " no order for costs " principle in relation to those separate questions. On the other hand, given that the determination of the merits appeal before Commissioner Bly proceeded to a hearing within a few days of the primary judge determining the preliminary questions in circumstances where neither party sought the adjournment of that hearing until her Honour's determination of those questions could be challenged on appeal, I do not consider that it would be fair and reasonable to depart from the ordinary rule that there should be no order for costs with respect to those proceedings. 51 Tobias JA exposed the tension between the view of McClellan CJ at CL and the view of Basten JA in Hunter Development as follows at [201] - [206]: However, it is necessary to observe that in Hunter Development Brokerage Pty Ltd v Cessnock City Council [No 2] [2006] NSWCA 292, Basten JA, with whom Santow and Bryson JJA agreed, adopted an approach to the application to Pt 16 r.4(2) of the Court Rules which differs from that adopted by McClellan CJ at CL in Gee as explained by his Honour in his reasons in the present matter. As I perceive that difference, whereas his Honour espouses the approach to r.4(2) that, as a general provision, the resolution in Class 1 proceedings of preliminary questions of law should result in an order that costs should follow the event, Basten JA approached the Rule upon the basis that it did not distinguish, for the purposes of determining whether it was fair and reasonable to depart from the prima facie position that there be no order for the payment of costs in Class 1 proceedings, between a preliminary hearing on questions of law to which the " costs follow the event " principle should generally be applied and the " merits review " proceedings before a commissioner where the " no order for costs " principle should generally apply. Thus, in Hunter Development Basten JA observed (at [60]) that it was: difficult to derive from the principle underlying the rule a policy that would identify questions of legal capacity as definitively different from other legal questions which might be determined by a judge rather than a commissioner or to separate cases which turn entirely on the facts from those which may involve mixed questions of fact and law. Each of these classifications may be relevant: the subject matter, scope and purpose of the rule do not require that any be treated as definitive of whether an order that costs follow the event should be made. It appears to me, therefore, that there is a fundamental tension between the approach to the application of Pt 16 r.4(2) as adumbrated by this Court in Hunter Development and that which McClellan CJ at CL in his reasons in the present matter has indicated as being the proper approach to the application of the rule given the circumstances under which it was made and in the light of the history of the approach of the LEC to the awarding of costs in Class 1 proceedings given their particular character so identified by his Honour. In my opinion, it is neither necessary nor appropriate for me to determine whether the Chief Judge's approach as articulated in the present case or this Court's approach in Hunter Development constitutes the correct approach to the application of the rule. In particular, it would be inappropriate to do so as the matter was not argued before us no doubt because the argument took place before judgment was delivered in Hunter Development. I appreciate that McClellan CJ at CL's views on the one hand and those of this Court in Hunter Development on the other may result in difficulties in the application of the rule by judges of the LEC although I would consider that, at the present time, they are bound by the approach in Hunter Development unless and until leave is granted by this court to review that decision. Accordingly, for present purposes it is unnecessary for me to comment on which of the approaches to the application of the rule is the one which I would prefer and I therefore do not do so. 52 Soon afterwards Preston CJ observed in Thaina Town (On Goulburn) Pty Ltd v Council of the City of Sydney [2006] NSWLEC 782 at [16], that the longstanding practice of this Court in merits review proceedings has been that there should be no order for costs unless the circumstances of the case merit an order for costs, and (at [17]) that the Court of Appeal in Hunter Development did not hold such an approach to be in error. 53 Part 16 rule 4(2) is a new beginning. It has been said that the earlier practice, case law and the Practice Note have no influence on the application of rule 4(2): per Bryson JA in Hunter Development (at [3]). Although that might be thought to be discordant with the approach of Basten JA at [42] in considering the question of the costs issue by reference to pre-rule 4(2) case law (in particular Gee), it is consistent with AMP Henderson.

Validity of Part 16 rule 4 54 The first issue for determination in the present proceedings is the validity of Part 16 rule 4. The applicant submitted that: (a) the rule is, of itself, an impermissible fetter on the Court's broad discretion conferred by s 69(2)(a) of the Court Act; (b) alternatively, the rule has been construed in such a way as to impose such an impermissible fetter on the Court's broad discretion. 55 In the latter respect, the applicant submitted that the rule has been construed as providing that there is a general presumption that there will be no order for costs in proceedings to which it applies; and that this presumption will only be displaced if the parties seeking an order for costs can demonstrate that there are circumstances making it "fair and reasonable" that the general rule not apply in a particular case: Grant v Kiama Municipal Council [2006] NSWLEC 70 at [13]-[14] (Preston CJ) and the cases there cited. Reference was also made to Grant at [14], which quoted the dictum of Talbot J in Aldi Foods Pty Ltd v Holroyd City Council (2005) 142 LGERA 141 at 144 [5]. In that case his Honour said that the rule makes it plain that the approach to an application for an order as to costs in class 1 proceedings is "fundamentally unchanged from the historical position to the extent that the underlying principle is that there will generally be no order as to costs". I have earlier referred to Grant and other authorities on the construction of the rule. All have proceeded on the basis that the rule is valid. 56 In my opinion, the construction and guidelines expressed in Grant and in Preston CJ's subsequent judgments in Manly Warringah Rugby Leagues Club Pty Ltd v Warringah Council [2006] NSWLEC 88 and Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 285 do not constitute a fetter on the discretion and comply with the principles for guidelines found in Oshlack referred to above at [41]. 57 The applicant submitted that the provision in s 69(2)(a) that the discretion in respect of costs is 'subject to the rules' does not authorise a fetter of the Court's discretion of the kind now said to be in place. He submitted that that qualification contemplates minor incursions or modifications to the wide discretion, for example such as might arise in circumstances where a regime is established under the law for the making of offers of compromise, and consequential orders for costs in the event that such offers are not accepted. He submitted that the rule is repugnant to the discretion conferred by s 69, thus rendering the section nugatory, and that the qualification could not have been intended to authorise the making of such a rule. The applicant relied on Copping v ANZ McCaughan Ltd (1995) 63 SASR 523. In that case, s 40(1) of the Supreme Court Act 1935 (SA) provided that 'Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court… shall be in the discretion of the court'. A rule of the court provided that: 'Subject to these Rules, the costs of and incidental to a proceeding shall follow the event unless the Court otherwise orders'. King CJ (with whom Mohr and Nyland JJ agreed) held at 527 that: … the section is expressed to be 'subject to the rules'. Nevertheless the legislative intention is plainly to confer on courts and judges an unfettered discretion as to costs. A construction of a rule of court which practically negates the statutory provision is not lightly to be adopted. It may well be that the rule, so construed, would be invalid. Where a statutory provision is made subject to Rules of Court, the rules may prescribe procedures which condition the operation of the statutory provision or limit the mode of its operation. They may even modify or exclude its operation in defined circumstances. But a general provision in a Rule of Court which substitutes a different rule across the board for that described by the statute would seem to me to be invalid as repugnant to the statute. 58 Copping is distinguishable on the basis that in the present case Part 16 rule 4(2) does not operate "across the board" but only on specific areas of the Court's jurisdiction and prescribes the operation of s 69(2) in those areas. 59 If Copping is not distinguishable, then in my view it is inconsistent with earlier High Court authority (to which it did not refer) and NSW authority which are binding upon me. In Knight v FP Special Assets Ltd (1992) 174 CLR 178 the High Court considered s 58 of the Supreme Court Act 1867 (Qld) which provided that "The Supreme Court shall have power to award costs in all cases lawfully brought before it and not provided for otherwise than by this section". Order 91 rule 1 of the rules of the Supreme Court of Queensland provided that, subject to the provisions of the Judicature Act and the rules, the costs of and incidental to all proceedings in the Court shall be in the discretion of the Court. The High Court construed this rule as conferring power to award costs, expressed in terms of a broad discretion, in all proceedings before the Supreme Court, and thus s 58 of the Supreme Court Act had no application. It was held that an order for costs might be made under the rule against receivers of companies which were unsuccessful parties in the proceedings, the receivers themselves not having been parties to those proceedings. Knight was approved in Oshlack at [38]. 60 In Leicester v Walton (NSWCA, 22 November 1995, unreported), the Court of Appeal considered s 76(1) of the Supreme Court Act 1970 which was identical to s 69(2) of the Court Act. The Court of Appeal held: The Court's power to award costs is now statutory and it is to the statute, to the rules of the Court and to any other Act, that one must look to find the extent of the Court's jurisdiction; Knight v FP Special Assets Limited (1992) 174 CLR 178. The Court has no inherent jurisdiction in respect of costs beyond this. It is important to note, as Mason CJ and Deane J remarked of s58 of the Queensland Supreme Court Act 1867 in Knight v FP Special Assets Limited at 183, that the area of operation in s76 necessarily depends upon the scope, as it exists from time to time, of other legislative provisions dealing with the award of costs. Unrestricted by the terms of any rules, this section would enable the Court to order the United Medical Defence or Mr Pike to pay the respondent's costs. But, the rules of Court dealing with the award of costs in cases governed by s76, have the effect of reducing the scope of the power conferred by that section. 61 In neither Knight nor Leicester was there any suggestion that the relevant rules of court were invalid. 62 The common technique of a statutory costs provision being made expressly subject to rules of court may be traced back at least to s 50 of the Supreme Court of Judicature (Consolidation) Act 1925 (UK) which was quoted in Oshlack at [32]. It is reflected in s 98 of the Civil Procedure Act 2005 (NSW) and its immediate antecedent s 76(1) of the Supreme Court Act 1970 (NSW). A provision close in terms to Part 16 rule 4 was to be found in the Family Law Act 1975 (Cth) s 117 which read: (1) Subject to sub-section (2) and section 118, each party to proceedings under this Act shall bear his own costs.

(2) If the court is of opinion in a particular case that there are circumstances that justify it in doing so, the court may, subject to the regulations, make such orders as to costs… as the court thinks just. 63 The High Court held in Penfold v Penfold (1980) 144 CLR 311 at 315 (in a passage quoted by Basten JA in Hunter Development at [21]): It is an accurate description of s 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to s 117(2). As subsection (1) is expressed to be subject to subsection (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs. Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently…, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117(2) in " a clear case ". 64 The Court of Appeal has thrice decided cases on Part 16 r 4(2) without doubting its validity: AMP Henderson Global Investors v Valuer General (2004) 134 LGERA 426; Hunter Development Brokerage Pty Ltd v Cessnock City Council (No 2) [2006] NSWCA 292; and Residents against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323. Each has been analysed above. 65 The applicant sought to distinguish AMP Henderson on the point that there the primary judge found (as the Court of Appeal said at [81]) that the parties conducted themselves upon the basis of the Court's practice which predated the Practice Direction. The precise finding of the primary judge is set out at [78] of the Court of Appeal's judgment as follows: "These proceedings were conducted before the enactment of Pt 16 Div 2 r 4 of the Rules. The Court accepts therefore that the applicants instituted the appeal and conducted it on the basis that there existed a strong prospect that the Court would make no order for costs in the event that the appeals were dismissed". In my view, the same should be said of the applicant in the case before me. Even after the old Practice Direction had effectively been struck down by the Court of Appeal in Maurici, the preponderant weight of authority in this Court (predating the Practice Direction) was that costs were generally not awarded in such administrative appeals; and the second costs judgment of Lloyd J in Maurici was on foot from 2001 and was adverse to the applicant. Furthermore, prior to the second proceeding before Commissioner Nott the rule was in force. 66 For these reasons I do not accept the applicant's submission that Part 16 rule 4 is invalid.

Retrospectivity 67 The applicant acknowledged that the rule against retrospective operation of a statute does not apply to statutes that are concerned with procedure only and that costs matters are procedural: Arnett v Holloway [1960] VR 22. However reference was made to the dictum of Dixon CJ in the leading case of Maxwell v Murphy (1957) 96 CLR 261 at 267 quoting Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 that: "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done". The applicant placed emphasis on the concluding words and submitted that it was "unjust and unfair'" to apply the rule in circumstances where he had successfully challenged the Practice Note regime by appealing to the Court of Appeal, where up to the commencement of the rule the unfettered discretion of the Court pursuant to s 69(2)(a) of the Act applied, and where the rule was introduced by a need which arose, according to the Explanatory Note to the rule, by reason of the applicant's successful appeal to the Court of Appeal on costs. 68 In my opinion, the "injustice" which raises a presumption against a procedural statute operating retrospectively is where an alteration of a matter of procedure affects a vested right adversely. This is illustrated by Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228, where it was held that a procedural statute will not be regarded as having retrospective operation if to do so would have the effect of depriving a party of a right of action. If existing rights are merely varied, a procedural statute will operate retrospectively. In the present case I do not see an injustice in applying rule 4(2) retrospectively. In Arnett v Holloway [1960] VR 22, at 33, Adam J quoted Craies on Statute Law, 5th ed., at p 370: "there is no vested right in procedure or costs. Enactments dealing with these subjects apply to pending actions, unless a contrary intention is expressed or clearly implied." AMP Henderson is analogous, for there the rule was applied retrospectively when it was introduced after trial but before judgment. Statutes or rules introduced while a case was part heard were applied retrospectively in Galvin v Forests Commission of Victoria [1939] VLR 284 and Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413. 69 Furthermore, if it is relevant, the reasonable expectation of the applicant when the first proceeding before Commissioner Nott commenced must have been that the Court would approach the matter in accordance with its Practice Direction. His reasonable expectation must have been that in accordance with the Court's long standing practice it was unlikely that he would be awarded the costs of a merits hearing if successful (unless the circumstances were exceptional). His reasonable expectation when the second proceeding commenced must have been that the Court would approach the matter in accordance with the new rule 4(2), that is, that no costs order would be made unless the Court considered that, in the circumstances of the case, the making of a costs order was fair and reasonable.

Application of the rule 70 Under Part 16 r 4(2) the question is whether, notwithstanding the general no costs rule therein, the making of a costs order is, in the circumstances of the case, fair and reasonable. Relevant circumstances include that this is an administrative appeal (notwithstanding a contrary submission by the applicant) and that the ordering of costs would present prospective applicants with the unpalatable prospect of not only meeting their own costs but also the costs of the respondent if they are unsuccessful: AMP Henderson (CA), above. If the particular facts warrant it, regard may also be had to the fact that prior to the rule (and the old Practice Direction) the preponderant weight of authority was that costs were generally not awarded in such administrative appeals: ibid. I think that the particular facts of this case do warrant it, as they did in AMP Henderson. In that case the rule was introduced after the conclusion of the hearing. In the present case the rule was introduced after the first hearing, but before the second hearing. However, if I am in error on that point, I would still reach the conclusion expressed below without taking that point into account. 71 The applicant submitted that it was fair and reasonable to order the respondent to pay its costs of the two proceedings before Commissioner Nott having regard to the following circumstances of the case. 72 First, the appeal was successful. The original assessment was $2,440,000. Some two weeks before the hearing the respondent offered to resolve the proceedings on the basis of a value of $2 million with no order as to costs. The result of the first hearing before the Commissioner was that the appeal was allowed and the land value reduced to $1,950,000. The result of the second hearing before the Commissioner was that the appeal was allowed and the land value was reduced to $1,890,000. The overall result was that by objecting and bringing the proceedings, the applicant achieved a reduction in land value of $550,000 or about 22 percent. I accept that these matters are relevant. On the other hand, I think that the degree of success relative to the parties' competing positions is also relevant. The applicant was unsuccessful in its contention that the valuation should be $1.25 million or thereabouts. Further, the ultimate reduction in the amount of the respondent's unaccepted offer, made prior to the first hearing, was $110,000 or about 5.5 percent. 73 Secondly, the respondent notified a substantial error in its original assessment of land value only two weeks before the first hearing before the Commissioner. I accept that this is a relevant consideration and note that the Commissioner's first judgment at [2] said: "The respondent ascertained the land value at that date to be $2,444,000. However, waterfront properties in the Hunters Hill Municipality were reviewed and reduced in value and it was intended also by the respondent that the land value of the subject land be reduced to $2,000,000, but the omission to do so was not discovered until the respondent's expert valuation report was being prepared". 74 Thirdly, the applicant bettered that settlement offer of $2 million. I accept that this is a relevant consideration. In the Court of Appeal in these proceedings, Handley JA (with whom Beazley JA agreed) said that it is relevant to the exercise of this Court's discretion on costs that the respondent's offer could be viewed as analogous to an offer of compromise, that the offer was bettered (although only by $50,000), and that it did not extend to the payment of the applicant's costs to that date: (2001) 51 NSWLR 673 at [59]. Giles JA, on the other hand, preferred not to enter upon such matters for this Court: at [63]. I consider that it is also relevant to take into account that, as Lloyd J said in his second judgment on costs in these proceedings (2001) 119 LGERA 395 at 401 [22]: It is correct to say that if the applicant had not commenced the proceeding he would not have achieved any reduction below the original valuation of $2,440,000. If the applicant had accepted the respondent's offer of $2,000,000 he would, in my opinion, have had a strong argument for an order for his costs in the light of the considerable costs incurred in preparing his case, which costs would have been unnecessarily incurred. But that is not the case here. The whole of the applicant's argument and the methodology propounded by his expert evidence was directed at a valuation of $1,250,000. Even if one were to apply the ordinary principle that costs normally follow the event, the argument for an order for costs is not particularly strong. Commissioner Nott's determination was only $50,000 less than the valuation contended for by the respondent at trial. Having regard to the two sums in issue, the extent to which the respondent's assessment has not been sustained is only marginal.

The only qualification I would make is that the respondent's offer required the parties to pay their own costs and therefore could not technically be accepted whilst preserving a right to contest costs. However, I think that what his Honour implicitly meant was that the applicant could have said that he would agree to a $2 million valuation but would contest costs. 75 Fourthly, the applicant submitted that there should be taken into account that in other types of litigation an appellant who successfully reverses orders made at first instance generally obtains an order for its costs of both the appeal and the hearing at first instance. I do not think that this is relevant under Pt 16 rule 4(2). 76 Fifthly, the applicant submitted that it was a relevant circumstance that he ultimately obtained rejection of what had been determined at the first hearing by Commissioner Nott and that the High Court said that, in valuing the land, the respondent's valuer "'ignored a principle of assessment of [value]'… or, to put it another way,… did not proceed rationally, in that he was unreasonably selective in ultimately confining himself to two sales of scarce vacant land for the purposes of the comparison": (2003) 212 CLR 111 at 121 [18]. I accept that this is a relevant circumstance. However, the High Court said that it will be for this Court (if it thinks fit) to make any order for costs of the proceedings before the Commissioner: at [25]. 77 Sixthly, it was submitted that this is not an administrative appeal. I disagree. In the course of submissions this was recast as a submission that the rationale for no costs in administrative appeal cases has little weight in a complex revenue case such as this, where the revenue authority seeks to expropriate part of the wealth of a citizen and is found to have made an excessive demand. This may be accepted as a fair description of the nature of the case, which is a circumstance to be taken into account. But I do not accept that it, of itself, leads to the conclusion that the no costs rationale is of little weight. As Lloyd J said in his second costs judgment (2001) 119 LGERA 395 at [15] in relation to a similar submission: The applicant relies upon the fact that the present proceeding is a land tax appeal rather than a valuation appeal. As was noted by Handley JA in the Court of Appeal, different considerations apply to appeals from taxation assessments levied by the State. Land valuations, however, are made for the purpose of levying rates and taxes by both local government councils and by the State. In the present case the value of the land was the basis for the tax. Although there may be a difference in truth between an appeal against an assessment for land tax and an appeal against a valuation of land, it seems to me that there is really no difference in substance or effect. This is illustrated by the present proceeding, in which the sole issue was the question of the unimproved value of the applicant's land. I do not, therefore, place much reliance on this submission. 78 The rationale for no costs in administrative appeals is not perfect. It is a compromise. In order not to deter the citizen from appealing against an administrative decision (of whatever character) by the spectre of costs if he or she loses, it is thought to be generally preferable that there should be no order as to costs. Now that is subject to the "fair and reasonable" qualification in Part 16 r 4(2). Take the present case. Suppose that the applicant had failed to improve on the respondent's valuation assessment or on the respondent's settlement offer. The logical conclusion of the applicant's argument in such circumstances is that he would face the grave risk of a costs order being made against him in relation to ten days of hearings. For many citizens such a costs order would be financially grave, if not disastrous, and its prospect a great deterrent to bringing proceedings. 79 Seventhly, the applicant submitted that the case was in the nature of a test case and raised for consideration important valuation principles, as Commissioner Nott noted in his second judgment at [356]. I accept that significant valuation principles arose and that that is a relevant consideration. On the other hand, there should also be taken into account that significant issues of principle frequently arise in valuation cases and that the applicant was only partially successful on the issues of principle that he raised. For example, he was only partially successful on the issue which seems to have loomed largest at the second hearing before the Commissioner (although not at the first hearing). That was the quantum of what came to be called "the improvements increment". Again, in relation to what was called "the scarcity issue", which was of significance in principle in the High Court's judgment, it was found at the second hearing before the Commissioner that the evidence did not establish that any premium attached to the price of vacant land to reflect scarcity. Thus, on that issue the applicant won the battle (in the High Court) but lost the war. 80 Eighthly, the applicant submitted that nothing in the reasoning of Lloyd J in his second judgment precludes an order for costs being made. His Honour's judgment was delivered before Part 16 rule 4 was introduced and therefore did not address the terms of that rule. Nevertheless, as I have already indicated, I regard much of his Honour's reasoning as persuasive when considered in light of the rule. The applicant further submitted that Lloyd J fell into error in his second judgment at [23] when he said: "In my opinion, in the exercise of the Court's unfettered discretion under s 69(2) of the Land and Environment Court Act and having regard to: (1) the fact that the proceeding is to be regarded as an administrative appeal; (2) that the preponderant weight of authority in this Court (pre-dating cl 10A of the Land and Environment Court Practice Direction 1996) is that costs are not generally awarded in such administrative appeals; (3) that the ordering of costs would present prospective applicants with the unpalatable prospect of not only meeting their own costs but also the costs of the respondent if they were unsuccessful; and (4) the particular facts and circumstances of the present case… I am inclined to the view that there should no order as to costs". The applicant's submission was that in relying on the first three of these propositions, Lloyd J fell into the error of placing an impermissible and rigid fetter on the exercise of his discretion. I do not accept that submission. It is true that, as analysed earlier, in AMP Henderson Global Investors v Valuer General (2004) 134 LGERA 426 the Court of Appeal held that it would not be appropriate in the future to take into account the second proposition unless the particular facts warranted it. However the Court of Appeal made no criticism of his Honour's other propositions. 81 The applicant relied on the observation of Handley JA in the Court of Appeal that a taxpayer should not be faced, by a Practice Direction of the court, "with the unpalatable choice between submitting to an excessive tax assessment, or having to meet his own costs of a successful appeal". The applicant submitted that Lloyd J in his second judgment at 400 [16] disregarded this principle when saying that "It seems to me that the difficulty with this observation is that it is not carried to its obvious conclusion. If a taxpayer is unsuccessful in his challenge to the tax assessment he may have to face the even more unpalatable possibility of paying the costs of the other side". I do not think that Lloyd J was in error in making this observation. The Court of Appeal in AMP Henderson in effect agreed with Lloyd J that this was a relevant consideration. 82 The respondent submitted that there should be taken into consideration that Commissioner Nott, in his second judgment at [356], was critical of the large number of allegedly comparable sales raised by the applicant. This point may go (or also go) to whether, if the applicant were to be awarded costs, they should be awarded for the whole of the second proceedings before Commissioner Nott or only for part of them. Commissioner Nott said in his second judgment [at 356] that the applicant put before the Court evidence of the valuation or analysis of practically every known comparable sale within 18 months of the base date and that 'in retrospect' it seemed to him that a much smaller representative group of sales could have been chosen, with substantial savings in costs and time. However, as the applicant submitted before me, the tables of comparable properties at pp 5 and 6 of Commissioner Nott's second judgment show that of the 25 comparable sales analysed by him, 13 were relied on by the respondent or Commissioner Nott. Those 13 had been put forward first in a valuation report by Mr Croker for the respondent. Thus the applicant appears to have introduced 12 new comparable sales. The point is that to the extent the analysis of comparable sales became so large, it was driven by the conduct of both parties and, in a sense, the applicant could be viewed as reacting to the position initiated by the respondent. Therefore I do not think that this is a factor that should weigh against the applicant, nor for that matter against the respondent, on discretion. 83 Weighing up all the considerations, I am not persuaded that it is fair and reasonable to make an order for costs in favour of the applicant. In accordance with the principle stated in Grant v Kiama Municipal Council [2006] NSWLEC 70 at [74] and the cases there cited, the applicant should pay the respondent's costs of his notices of motion. 84 Accordingly, I dismiss the applicant's notices of motion dated 3 December 1999 and 9 November 2005 with costs.

01/02/2007 - 1. correction to citation FROM Telstra Corporation Ltd v Holroyd City Council [2006] NSWLEC 711 TO Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 2852. correction to typographical error in legal representatives - respondent incorrectly typed as "applicant" - Paragraph(s) 1. 48, 56, cover page - list of cases 2. cover page - legal representatives

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