Nedoni Pty Limited v NSW Minister for Roads and Anor.

41046 of 2002 NEDONI PTY LIMITED V NSW MINISTER FOR ROADS AND ANOR

JUDGMENT HIS HONOUR: A. INTRODUCTION 1 By Notice of Motion filed 11 August 2004, the Applicant seeks an order for costs against each of the two Respondents to these class 4 proceedings which were concluded (save for the reserved question of costs) by my judgment delivered on 1 March 2004 - see [2004] NSWLEC 56. 2 The second Respondent does not oppose a costs order being made against him. However, the first Respondent does oppose a costs order being made against him. Instead, he seeks a costs order against the Applicant. The Applicant's response to the first Respondent's argument is that if costs are awarded against the Applicant, the Court would order the second Respondent to pay those costs by way of a "Bullock" order which was justifiable in the circumstances of this case. B. THE RESULT IN THE SUBSTANTIVE PROCEEDINGS 3 In the substantive proceedings, the Applicant sought a mandatory order that either Respondent acquire the Applicant's land pursuant to an obligation imposed by the Byron Local Environmental Plan 1988, cl 43 (the LEP) in terms upon "the Minister administering the Roads Act 1993" upon receipt of a notice in writing requiring the specified land to be acquired. 4 At the hearing, each Respondent opposed the Applicant's claim that either of them was bound to acquire its land (the Applicant had given separate notices in writing to each of the Respondents) upon the following eight grounds: 1. Neither Respondent was relevantly " the Minister Administering the Roads Act 1993 " within the meaning of cl 43(2) of the LEP. 2. The written Notices given to each Respondent were invalid for uncertainty in failing to specify precisely what land was required to be acquired. 3. The obligation imposed by cl 43(2) of the LEP upon the relevant " Minister Administering the Roads Act 1993 " was conditional upon fulfilment of the conditions specified in cl 43(6) of the LEP and the condition specified in cl 43(6)(c) has not been satisfied. 4. Clause 43(2) and (3) as introduced into the LEP on 12 May 2000 by Byron Local Environmental Plan 1988 (Amendment No 78) was invalid for uncertainty and/or unintelligibility. 5. Clause 43(2)(f) of the LEP was invalid because of relevant non-compliances in the preparation of the draft LEP (Amendment No 78) with (a) the requirements of cl 10 of the Environmental Planning and Assessment Regulation 1994 and (b) s 62 of the Environmental Planning and Assessment Act 1979 .. 6. Clause 43(2)(f) of the LEP was ultra vires ss 26 and 27 of the EP&A Act . 7. The EP&A Act , s 35 did not preclude each of the Respondents' challenges to the validity of cl 43 because the grounds or bases for those challenges were not comprehended by s 35. 8. Even if one or the other Respondent was held to be liable to acquire the land, the Court in the exercise of its discretion, would refuse the relief claimed 5 In my judgment, I held that none of the several grounds advanced by each Respondent in denying liability had been substantiated. 6 That outcome applied to the first ground, namely that neither was relevantly the "Minister administering the Roads Act 1993 within the meaning of cl 43(2) of the LEP. 7 The content of this ground as argued by the Respondents travelled well beyond a denial by each Respondent that he was the responsible Minister. Rather, it was argued that neither Respondent was the responsible Minister, as is demonstrated by the following passage at pars 32 to 42 (inclusive) of my judgment: 32. Quite extraordinarily here the argument collectively advanced on behalf of the Respondents goes even further than their earlier mutual assertions (made to the Applicant's Solicitors) that it was the other Minister who was the responsible Minister. 33. It was argued that the first Respondent was not relevantly the Minister Administering the Roads Act 1993 as referred to in cl 43(2)(f) of the LEP because he was not the Minister to whom had been allocated the administration of the provisions of Part 12 of the Roads Act ( Acquisition of Land ). Accordingly, since he lacked the statutory power under the Roads Act to acquire land, he could not be the relevant Minister Administering the Roads Act 1993 as referred to in cl 43(2)(f) of the LEP. 34. This argument assumes, without demonstration, that cll 43(2) and (3) of the LEP do not create (i) a right in the land owner to require his lands be acquired and a (ii) correlative duty on the part of the relevant public authority to acquire, but rather only create a co-relative duty (in relation to the right to require acquisition) in circumstances where the relevant public authority already possesses aliunde the power to acquire land. 35. For my part, I would question the correctness of the assumption since, as a matter of construction there is no justification or mandate for qualifying the statutory duty to acquire which is clearly created by cll 43(2) and (3) of the LEP so that it only applies where the power to acquire is otherwise vested in the public authority upon whom the statutory duty is imposed. Conventionally, the imposition of the statutory duty implies the conferral of the requisite power to fulfil that duty. 36. Moreover, it is to be recalled that any breach of the duty imposed by cll 43(2) and (3) is enforceable in proceedings brought pursuant to the EP&A Act , s 123 - see Port Stephens Shire Council v Fidler (1997) 94 LGERA 298. 37. However, it is not necessary in the present proceedings for me to express a concluded view on the question since it is common ground that the second Respondent was at the relevant times vested with responsibility for the administration of provisions of the Roads Act , including Part 12 of that Act, and in the course of the hearing, the Applicant was content to accept that it is the second Respondent (and not the first Respondent) who is the Minister relevantly administering the Roads Act for the purposes of cll 43(2)(f) , and (3) of the LEP. 38. However, on behalf of the second Respondent, it was boldly submitted that despite the second Respondent being charged with the administration of, inter alia, of the Roads Act , Pt 12, he was not relevantly the Minister administering the Roads Act 1993 . It was claimed that this conclusion was yielded by a purposive construction of cl 43(2)(f) . But with the greatest respect to the second Respondent, it was not explained how cl 43(2)(f) , and more particularly, the expression the Minister Administering the Roads Act 1993 are susceptible to a purposive construction or how such an approach to construction would yield any different result from that yielded by a literal construction of the expression. The second Respondent sought to rely upon the affidavit sworn 30 July 2003 by John Francis Callaghan, senior legal officer in the employ of the Department of Lands and formerly employed as a senior legal officer of the Department of Land and Water Conservation. His affidavit deposes to his knowledge and experience of the manner in which the Department of Land and Water Conservation and the responsible Minister administered various parts of the Roads Act 1993 (and its legislative antecedents) particularly in relation to Crown Roads . 39. However informative the contents of Mr Callaghan's affidavit may be, in respect of matters of departmental policy and administration, they cannot inform the proper construction of cl 43(2)(f) and (3) of the LEP. Indeed, those contents are in truth, entirely extraneous to the task of statutory construction. The expression appearing in cl 43(2)(f) the Minister administering the Roads Act 1993 obviously means what it plainly states and it is an empty shibboleth to assert a purposive construction of the expression. It means the Minister, having been allocated with responsibility for the administration of that Act in relation to the acquisition of lands for the purposes of the Roads Act . That Minister is incontrovertibly the second Respondent and the argument to the contrary is simply untenable. 40. The arguments collectively advanced on behalf of the Respondents, although at pains to disclaim that either Respondent is relevantly the Minister administering the Roads Act 1993 significantly proffer no other suggestion as to how the relevant expression is to be construed. The logical force of the Respondents' collective argument is that there is no meaning to be given to the statutory expression which is therefore reduced to a meaningless reference. This is itself an absurd and unjust result. 41. Accordingly, I hold that the Respondents' argument that the first Respondent is not relevantly the Minister administering the Roads Act 1993 is arguably correct but the Respondents' argument that the second Respondent is not relevantly the Minister Administering the Roads Act 1993 is unarguably incorrect. 42. This ground for denying liability fails. 8 In my judgment, having held (at par 144) that the Respondents have failed to sustain any of their grounds for resisting the relief claimed and that the Applicant has established its right to have the relevant land acquired by the relevant Minister (at par 145), I went on to say at pars 145 to 147: 145. …………At the time the acquisition notices were given, the relevant Minister was the second Respondent. 146. However, it now appears that the identify of the relevant Minister has changed from the position that existed when each of the present Respondents was given notice in writing to acquire the relevant land. It may become necessary that the currently relevant Ministers be joined as a party to the proceedings. However, for the present time, I shall reserve the Applicant's application to amend the proceedings for that purpose because I propose at this stage to only grant appropriate declaratory relief upon the basis that the Respondents, being Ministers of the Crown, will act responsibly upon the declaration. If however, further relief is necessary, I will expressly reserve liberty to apply to obtain that further relief (which may include the granting of leave to amend the parties to the litigation). 147. Accordingly, I make the following orders: 1. Declare that the second Respondent, upon his receipt on or about 15 November 2002 of the written notice given by the Applicant for the acquisition of that part of its land being lot 2 Deposited Plan 588653 and known as Nos 148-154 Jonson Street, Byron Bay as is zoned 9(a) (Proposed Road) by the Byron Local Environmental Plan 1988, thereupon became bound to acquire that land pursuant to clause 43(3) of that Local Environmental Plan. 2. Reserve the Applicant's application to amend the parties to the proceedings. 3. Grant liberty to the Applicant to apply upon five days notice for any further relief (including any amendment to the parties) that may be necessary to enforce the public duty declared in the Declaration. 4. The exhibits be returned. 5. The question of costs be reserved C. HOW SHOULD THE COURT'S COSTS DISCRETION BE EXERCISED IN THE PRESENT CASE? 9 Having regard to the result in the substantive proceedings and to my reasons for judgment in those proceedings, I do not think that the first Respondent is entitled, in the exercise of the Court's discretion, to any costs order against the Applicant, despite the fact that no relief was granted against the first Respondent. 10 This fact (ie the absence of any relief being granted against the first Respondent) does not mean that the first Respondent is fairly to be regarded as being successful in the substantive proceedings. On the contrary, as I have earlier stated, both Respondents failed on all eight grounds that they had collectively raised in denying their liability to acquire the Applicant's land pursuant to cl 43 of the LEP. No relief was granted against the first Respondent because it was held that the second Respondent was relevantly the responsible Minister and this holding was sufficient to vindicate the Applicant's claim that either Respondent was bound to acquire the relevant land. 11 The circumstances in which the Applicant came to serve upon each Respondent a notice in writing requiring the acquisition of its land pursuant to cl 43 of the LEP are set out in paragraphs 11 to 26 of my reasons for judgment in the substantive proceedings setting out the relevant facts. There is no present need to delve into those facts or to re-examine the considerable volume of correspondence that passed between the Applicant's Solicitors and the Respondents before the class 4 proceedings were commenced on 18 December 2002 and between the Applicant's Solicitors and the Crown Solicitor (representing both Respondents) after the proceedings had been commenced. 12 It is sufficient to note that before the proceedings were commenced, the first Respondent had consistently denied that he was the responsible Minister to acquire the Applicant's land pursuant to cl 43 of the LEP and had advised that responsibility for acquisition under the Roads Act was reposed in the second Respondent. 13 After the Applicant's Solicitors (presumably acting upon this advice) had served the acquisition notice in writing on the second Respondent, they were informed by a department representative that the second Respondent was not responsible and that responsibility for acquisition lay with the first Respondent. 14 Whereas it is true that the legal and factual position as to the identity of the responsible Minister could have been readily ascertained by searching for the appropriate Gazette Notification allocating to various Ministers of the Crown responsibilities for the administration of all public Acts, it is significant that this sure source of clarification of the conflicting and confusing advices emanating from the Respondents was not disclosed by the Respondents. Indeed, their inconsistent advices to the Applicant's Solicitors indicates that at least one of the Respondents was not aware of the relevant Ministerial allocation of administration of the Roads Acts concerning land acquisitions. 15 Faced with conflicting advices from the Respondents, the Applicant adopted the precautionary (if unusual) approach of commencing the proceedings seeking to enforce the statutory obligation created by cl 43 of the LEP against both Respondents "being uncertain as to the appropriate respondent" (as recorded in the originating process) but only claiming the relief against one of them (namely the one who was relevantly the responsible Minister), there being no suggestion of any joint or several responsibilities. 16 In view of these unusual circumstances and having regard to the very close relationship between the Respondents (each being a Minister of the Crown and each having some differentiated allocated responsibilities under the Roads Act 1993), I do not think the fact that no relief was granted against the first Respondent vindicates its position in the litigation, especially in light of the total failure of its collective argument with the second Respondent in denying liability to acquire the Applicant's land on eight separate grounds. 17 It is for the foregoing reasons that I would exercise the broad costs discretion conferred upon the Court by the Land and Environment Court Act 1979¸ s 69 by not making any costs order against the Applicant and in favour of the first Respondent. 18 Conversely, in the circumstances where it is conceded that it is appropriate that a costs order be made in favour of the Applicant against the second Respondent, I do not think it appropriate to make any costs order against the first Respondent except for costs incurred on the hearing as to costs, in respect of which I think the first Respondent should pay the Applicant's costs because the first Respondent has failed in its application that it obtain an order for its costs. This, I think, is a more cogent factor in the exercise of the Court's costs discretion than is the fact that no costs order is to be made in favour of the Applicant against the first Respondent since the costs order to be made in favour of the Applicant against the second Respondent will sufficiently compensate the Applicant for having to bring the proceedings to enforce its statutory right to have its land publicly acquired. 19 Accordingly, I am disposed to make the following costs orders in favour of the Applicant - (i) against the second Respondent in respect of the costs of the substantive proceedings; and (ii) against the first Respondent in respect of the costs of the hearing on the disputed question of costs. 20 These conclusions mean that it is not necessary for me to determine whether, had the first Respondent been successful in obtaining an order for costs against the Applicant, those costs should themselves be the subject of a "Bullock" order against the second Respondent. 21 The appropriate circumstances or conditions for making such an order were stated in more circumscribed fashion (than is found in earlier formulations of the rule or practice) by Gibbs CJ in the following passages in Gould v Vaggelas (1985) 157 CLR 215 at 229/230: In my respectful opinion, however, the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or overcaution. The ground on which a Bullock order may be made is, in my opinion, more accurately stated in a passage in Sanderson v. Blyth Theatre Co. [56] , at p. 539, which was cited with approval in Bullock v. London General Omnibus Co. [57] , at p. 272 and Hong v. A. & R. Brown [58] , at p. 522, viz., that the costs which the plaintiff has been ordered to pay to the defendant who succeeded, and which the plaintiff recovers from the defendant who has failed are ordered to be paid by the unsuccessful defendant, on the ground that ... those costs have been reasonably and properly incurred by the plaintiff as between him and the [unsuccessful] defendant . In Johnsons Tyne Foundry Pty. Ltd. v. Maffra Corporation , Williams J. [59] stated the principle in a similar way and Starke and Dixon JJ., in giving their reasons for making a Bullock order, both relied on the circumstance that the attitude adopted by the successful defendant had induced the plaintiff to join the other defendant [60] . In my respectful opinion the true position was clearly stated by Blackburn C.J. in Steppke v. National Capital Development Commission [61], at pp. 30-31, when he said that there is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant . [56] [1903] 2 K.B. 533 [57] [1907] 1 K.B. 264 [58] [1948] 1 K.B. 515 [59] (1948) 77 C.L.R., at pp. 572-573 [60] (1948) 77 C.L.R., at pp. 559-560, 566 22 Whereas it may be debatable whether in the circumstances of the present case the conditions for the making of a "Bullock" order against the second Respondent would have been established by the Applicant, there is no need for a final view to be expressed, since I have not upheld the first Respondent's claim to costs and no occasion for the making of a "Bullock" costs order therefore arises. Nor, in view of the relationship between the Respondents as Ministers of the Crown, is it necessary to separately consider the respective positions of each Respondent in respect of the costs order to be made in the substantive proceedings. D. CONCLUSIONS AND ORDERS 23 For all the foregoing reasons, I am of the opinion that the Applicant should receive an order for its costs in the proceedings in which it has been entirely successful. 24 Accordingly, I make the following orders 1. The second Respondent pay the Applicant's costs in the substantive proceedings in the sum agreed, or failing agreement, as assessed. 2. The first Respondent pay the Applicant's costs in respect of the disputed question of costs in the sum agreed, or failing agreement, as assessed.

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