Moseley v Queanbeyan-Palerang Regional Council

Land and Environment Court (NSW)|2018-02-05|Before: Pain J

SOLICITORS: Jack C Herrald (Appellant) Bradley Allen Love (Respondent) File Number(s): 2016/227474

Judgment

I dismissed an appeal by Mr Moseley against his conviction in the Queanbeyan Local Court for carrying out development which required development consent under the Palerang Local Environmental Plan 2014 without such consent in Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52. Mr Moseley asked me to file a stated case to the Court of Criminal Appeal a process which involved a number of court appearances. Queanbeyan-Palerang Council (the Council) seeks some of its costs of the stated case which it claims were thrown away. The costs order sought is opposed by Mr Moseley.
A chronology was provided by the Council as follows: Date Event 18 Aug 2017 Appellant filed stated case including Draft Proposed Questions of Law (4 short questions). Directions hearing. 1 Sept 2017 Appellant was self-represented. Respondent Council's legal representatives appeared and handed up 10 page written submissions including 4 redrafted proposed questions of law. Directions hearing. 19 Sept 2017 Mr Herrald, solicitor, appeared for Appellant and Ms Hammond of counsel appeared for the Respondent Council. Matter adjourned to provide Appellant opportunity to obtain legal advice from counsel on utility. Directions hearing. 17 Oct 2017 Mr Bolger of counsel appeared for Appellant and Ms Hammond appeared for Respondent Council. Mr Bolger indicated an intention to provide the Court with revised questions of law and sought an adjournment. Council indicated that it did not oppose the adjournment but was concerned about the costs of responding to new questions, and indicated that it would seek its costs of the next appearance and of responding to the new questions. 30-31 Oct 2017 Appellant served further draft stated case and written submissions on the Respondent and Pain J's Associate. Amended draft stated case included new proposed questions. 7 Nov 2017 Appellant served Respondent with a further revised draft stated case, comprising 14 new proposed questions (Revised Stated Case). 21 Nov 2017 Respondent served Appellant and Pain J's Associate with written submissions and 4 revised proposed questions. Directions hearing. 23 Nov 2017 Mr Birch SC appeared for Appellant and Ms Hammond appeared for Respondent Council. Parties made submissions on competing draft questions and written submissions. Mr Birch SC submitted 14 proposed questions; the Council submitted 3 proposed questions. The Court ordered the parties to provide the Court with a final agreed version of the Council's proposed questions. 30 Nov 2017 Parties provided the Court with final agreed version of the stated case, including 4 questions. 1 Dec 2017 Pain J adopted and signed the stated case provided by the parties with minor amendments.

The Council seeks payment of its costs in respect of the following: 1. the Council's appearance on 23 November 2017 in which the parties made submissions on Mr Moseley's revised stated case and associated submissions; and 2. preparation of the written submissions and alternative questions prepared in response to the revised stated case.
A statutory source of power to award costs in the exercise of the criminal jurisdiction must be identified: Barton v Berman [1980] 1 NSWLR 63 at 67 (Hope JA, Glass JA agreeing).
The Council referred to s 49(4) of the Crimes (Appeals and Review) Act 2001 (CAR Act) which states: S 49 Miscellaneous powers (4) Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.

Jurisdiction

The Council submitted that the Court had jurisdiction to award costs. In Queanbeyan City Council v Kovacevic (No 2) [2015] NSWLEC 196 (Kovacevic) Craig J considered the Land and Environment Court's jurisdiction to make a costs order in a failed stated case and ordered costs thrown away were payable. The appellant had filed a purported stated case but subsequently withdrew it as it proved to be incompetent. Section 49(4) was referred to as a possible basis for a costs order at [17]. Section 70 of the CAR Act is not relevant here, as it limits costs awarded against a public prosecutor.

Exercise of discretion

When Mr Moseley filed his stated case the Council had no choice but to respond. The Council came prepared at the first directions hearing on 1 September 2017 to assist the Court with detailed written submissions addressing the draft questions filed and proposed redrafted questions.
Mr Moseley subsequently retained senior counsel who made significant changes to the stated case including submitting the revised stated case in November 2017. The Council was required to expend additional cost to consider those new questions. It again prepared written submissions and redrafted questions responding to the 14 new questions and issues raised by senior counsel for Mr Moseley.
Ultimately the Court directed the parties to agree on questions of law consistent with the Council's proposed questions of law which were the subject of oral submissions on 23 November 2017.
It is entirely reasonable and in the interests of justice for the Council to recover its costs of having to respond to the revised stated case. There was no delay by the Council or any other disentitling conduct that would cause the Court not to exercise its discretion to make a costs order in the Council's favour.
For these reasons the Court should exercise its discretion to order Mr Moseley to pay the Council's costs of having to consider and respond to the revised stated case.

Mr Moseley's submissions

It is unclear that the Court has the requisite power to order that Mr Moseley pay the Council's costs incurred as a result of Mr Moseley's amendments to his stated case. Further it is not just in the circumstances to make that order.
Arguably there is no power to award costs in these circumstances, there being no common law principle to that effect and no statutory provision either. None was identified in Kovacevic. No competing submissions were made in that case. A finding of an implied power under s 49(4) of the CAR Act arose in circumstances where an incompetent stated case had been made immediately consequent on the disposal of an appeal, or alternatively that the application was an abuse of process. There was no abuse of process by Mr Moseley in this case and nor does the Council contend for that.
If contrary to that submission the Court considers it has power, the exercise of discretion to award costs is not justified. The preparation of this stated case was inherently complex given the nature of the charges and the complex instruments governing development combined with the inherently cumbersome and unwieldy procedure for stating a case see Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 211 (Street CJ, Slattery CJ at CL and Yeldham J agreeing), White v Ridley (1978) 140 CLR 342; [1978] HCA 38 at 362 (Murphy J). The numerous versions of the stated case and preparation of several submissions by both parties were necessary to respond to both the Council and the Court's issues. The procedure would be unworkable if one party's version was accepted without alteration. It is necessary to settle a stated case with both parties and the Court which generally requires consideration of additional versions.

Finding

In Kovacevic Craig J said at [15]-[17]: [15] At first glance the entitlement to seek costs, in the events that have occurred, is not readily apparent, although the justice of the case would certainly warrant the making of such an order. Section 49(4) of the Crimes (Appeal and Review) Act 2001 enables the Court to make an order for costs in connection with an appeal brought under that Act to this Court. While that Act was the foundation for the appeal brought by the Council in the appeal that I determined, on one view, the provisions of that Act were spent when I made the Orders that I did on 25 September last. [16] The Council submitted that an alternate source of power to award costs in the present circumstances lies in the provisions of or flows from the provisions of the Criminal Appeal Act. Had a "stated case" been lawfully requested and determined, there is no question but that the Court of Criminal Appeal would have had a power to order costs to either party. So much is made clear by decisions of that Court, as is apparent from the decision in Environment Protection Authority v Riverina Australia Pty Ltd (No 2) [2015] NSWCCA 252. In that case the Court observed that while s 17 of the Criminal Appeal Act proscribed the making of an order for costs against either party in an appeal, the "stated case" procedure was not one that fell within the rubric of "appeal". As a consequence, the Court determined that a power to award costs remained. [17] I am satisfied that there is power to order costs, if for no other reason than flowing from the capacity of the Court to control its own process and also to address the question that came before it in a way that is consistent with the way in which the Court of Criminal Appeal could have addressed the question had the hearing proceeded to finality. Alternatively, the power also arises under s 49(4) of the Crimes (Appeal and Review) Act, the application being an incident of the appeal [to] this Court under that Act.
The circumstances in Kovacevic where an incompetent stated case was filed influenced Craig J's approach. There is no express common law principle or statute which otherwise expressly applies to costs in the circumstances before me where a stated case has been made to the Court of Criminal Appeal. Even if the Court does have power to award costs as found by Craig J in [15]-[17], I would not exercise my discretion in the Council's favour in the circumstances of this case. Mr Moseley initially appeared unrepresented in his proposed stated case in criminal proceedings involving reasonably complicated factual and legal issues. Once legal representation was obtained it was still necessary for several short court hearings to finalise the stated case, a result of the combined effort of the parties and the Court. That is a common occurrence in such matters, the complexity of which is identified in the cases referred to by Mr Moseley's counsel at [14] above and also reflects the Court's experience. I do not consider I should award the Council its costs as identified in [3] above. Each party should pay their own costs of this costs matter.

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: 01 August 2018

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