Norton v Blacktown City Council

Akedian Co Ltd v Royal Insurance Australia Ltd [1999] 1 VR 80 Caboolture Park Shopping Centre Pty Ltd (in Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 Charlton v Moore [2009] NSWLEC 61 Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2005] 1 NZLR 145 Gold Reefs of Western Australia v Dawson [1897] 1 Ch 115 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Law Society of New South Wales v Jackson (1981) 1 NSWLR 730 CASES CITED: Norton v Blacktown City Council [2009] NSWLEC 214 Orbell v Bundaleer Lodge Nursing Home Pty Ltd [1988] 1 Qd R 152 In the matter of Bauhaus Pyrmont Pty Ltd (in liq) (2006) 67 NSWLR 289 Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2008] NSWCA 283 Roth v RTA [2009] NSWSC 295 UTSA Pty Ltd (In liquidation) v Ultra Tune Australia Pty Ltd [1999] 1 VR 204 Wentworth v Wentworth (2001) 52 NSWLR 602 White City Tennis Club Ltd v John Alexander's Clubs Pty Ltd (No 2) (2009) 261 ALR 112 Yakmor v Hamdoush (No 2) [2009] NSWCA 284

DATES OF HEARING: 15 December 2009 16 December 2009 (written submissions)

APPLICANT Mr R Newton SOLICITORS Puleo Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms P Hudson (solicitor) SOLICITORS Marsdens Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10144 of 2008 Norton v Blacktown City Council (No 2)

JUDGMENT 1 HER HONOUR: Before me is a notice of motion filed on 23 September 2009 by the currently named applicant, Mr Chris Norton, seeking the following orders: (1) an order that Alf Coruhlu be joined as a party to the proceedings;

(2) an order that the respondent's costs incurred in these proceedings be paid by Alf Coruhlu in the sum agreed or as assessed; and

(3) an order that Alf Coruhlu pay the applicant's and respondent's costs of this notice of motion and in respect of the notice of motion filed by the respondent on 4 August 2009. 2 The motion was originally listed for hearing before me on 15 December 2009, together with a motion by Blacktown City Council ("the council") seeking its costs pursuant to the discontinuance of Class 1 proceedings by Mr Norton last year. The council's motion was disposed of by me on that day (Norton v Blacktown City Council [2009] NSWLEC 214, or "the first Norton decision"). Because of a potential jurisdictional issue identified during the course of discussions concerning Mr Norton's motion, Mr Norton was permitted additional time to make further submissions. As a consequence, determination of Mr Norton's motion was adjourned.

3 The council does not oppose or consent to the orders sought by Mr Norton and had played no active role in the hearing of the motion. Thus no contradictor to the motion exists.

4 In the first Norton decision the council was awarded costs fixed in the sum of $29,500 payable by the named applicant, Mr Norton, with an additional order that the applicant to pay the council's costs of the motion. This motion seeks to have the Court determine whether Mr Coruhlu ought instead be liable for both sets of costs. 5 When the matter was called on for hearing there was no appearance by Mr Coruhlu. As a result of the evidence presented to the Court on 15 December 2009 in respect of the notice given to Mr Coruhlu that the motions were proceeding on that day, and in light of the service on Mr Coruhlu's last known address of the additional submissions made by Mr Norton when this application was adjourned, I am confident that adequate opportunity has been given to Mr Coruhlu to participate in the hearing of the motion. Consequently, the motion has proceeded in his absence.

Factual Background 6 In part, the background to this application is set out at paragraphs [3], [7], [13]-[14] of the first Norton decision. The remaining relevant factual matters appear from the evidence of Mr Norton.

Evidence of Mr Norton 7 The motion was supported by an affidavit of Mr Chris Norton sworn 22 September 2009. In the affidavit Mr Norton deposed to the following: (a) that he is a licensed real estate and business agent and strata manager; (b) that although he is the applicant named in the proceedings, Mr Alf Coruhlu is one of the registered proprietors of the land the subject of the discontinued proceedings and that he, Mr Norton, has no interest in the land. Mr Norton's role was solely as a consultant to Mr Coruhlu and that at all times during the proceedings he acted as the agent of Mr Coruhlu;

(c) that Horowitz & Bilinsky, the solicitors on the record, were the firm of solicitors instructed by Mr Coruhlu to act in Mr Norton's name to bring the proceedings. Throughout the proceedings, instructions were given by Mr Coruhlu to Horowitz & Bilinsky and not by Mr Norton;

(d) that on various occasions prior to and during the proceedings Mr Norton had conversations with Mr Coruhlu in which Mr Coruhlu said to him: "don't worry I will be responsible for all legal costs"; and

(e) that on 29 October 2008, Mr Norton sought confirmation from Horowitz & Bilinsky that Mr Coruhlu would be responsible for the cost of the council in the proceedings. Mr Norton received this confirmation on or about 30 October 2008. 8 With leave Mr Norton also gave oral evidence of his delay in seeking to join Mr Coruhlu as a party to the proceedings. Mr Norton stated: (a) that because Mr Norton had specialist expertise in child care centre developments he had been engaged by Mr Coruhlu to coordinate the proposed development the subject of the discontinued proceedings. This included being the named applicant for the development application;

(b) that Mr Norton did not give instructions to have proceedings commenced in this Court in his name, rather, he became aware that he was the named applicant to the proceedings only subsequent to their filing;

(c) that he was not concerned at the time that he became aware that he was the named applicant to the proceedings because he considered the proceedings to be a continuation of his role as coordinator of the development; (d) that it was only when he received a bill addressed to both himself and Mr Coruhlu from Horowitz & Bilinsky that he became aware of the possibility that he may be liable for costs if an adverse costs order was made in the proceedings;

(e) that at no time did he either seek or obtain advice from Horowitz & Bilinsky as to any liability that he might incur by being the named applicant in the proceedings. At no time did Horowitz & Bilinsky inform him that there might be a conflict of interest between the instructions they were receiving from Mr Coruhlu and any liability that Mr Norton might incur as the named applicant;

(f) that at all times it was Mr Coruhlu who gave instructions to Horowitz & Bilinsky and not himself;

(g) that Mr Coruhlu had agreed to pay any costs associated with the proceedings;

(h) that subsequent to the proceedings being discontinued he was unaware of negotiations between Mr Coruhlu, Horowitz & Bilinsky and the solicitors for the council, Marsdens, concerning the payment of the council's costs by reason of the discontinuance. In particular, he was unaware that the sum of $29,500 had been agreed between those three entities as the quantum of the costs; and

(i) it was only when it became apparent that the council was seeking costs from Mr Norton as the named applicant in the proceedings that he obtained separate legal representation and applied to have Mr Coruhlu joined to the proceedings.

Joinder of Mr Coruhlu as an Applicant After the Proceedings Were Discontinued by Mr Norton

9 Because leave to discontinue was given by the Court on 3 October 2008 but Mr Norton's application for joinder and costs was filed on 23 September 2009, an issue arises as to whether there are any proceedings to which Mr Coruhlu can become a party.

10 On one view, once leave to discontinue is given under r 12.1(b) of the Uniform Civil Procedure Rules 2005 ("UCPR"), the discontinuance crystallises and the proceedings cease to exist. Accordingly, because r 42.3 of the UCPR states that, despite the broad discretion to order costs conferred on the Court in s 98 of the Civil Procedure Act 2005 ("the CPA"), "the court may not…make an order for costs against a person who is not a party to proceedings", even if there were grounds to join Mr Coruhlu as a party to the proceedings under r 6.24 of the UCPR it is too late to do so, and therefore, no costs order can be made.

11 The applicant argues that notwithstanding that the proceedings have been discontinued, as a party to those proceedings he is nonetheless entitled to bring the application for joinder and seek relief against the costs order made in the first Norton decision because: (a) Mr Coruhlu was already a "party" for the purpose of r 42.3 of the UCPR, albeit not formally joined, and the restriction referred to in that rule precluding costs orders against third parties is of no application. This is because there being no definition of the term "party" in the UCPR or CPA, the term is broad enough to include a person who actually participates in the determination of the issues in the proceedings. In this regard, the evidence reveals that Mr Coruhlu was closely involved in the proceedings and the Court should treat him as a real party for the purpose of the rule; (b) alternatively, the making of a final judgment, including leave to discontinue, does not preclude determining supplemental or ancillary matters such as costs against a non-party or joinder for that purpose;

(c) the procedural step of formally joining a person who is in substance a party is an ancillary or supplemental matter which can also take place after the final disposition of the proceedings; and

(d) while r 12.3(1) of the UCPR expressly preserves the rights of a discontinuing party to claim the same relief in fresh proceedings, in the present case this would lead to an undesirable multiplicity of proceedings. Issues

12 The arguments presented by Mr Norton give rise to four separate issues: (a) first, is Mr Coruhlu in truth a party to the proceedings so that the prohibition in r 42.3 does not apply to him and joinder is not necessary;

(b) second, if so, should the Court exercise its discretion and make the costs for which Mr Norton is liable, payable by Mr Coruhlu;

(c) third, if not, does the Court have jurisdiction to join Mr Coruhlu if the proceedings have been discontinued and order costs against him; and

(d) fourth, if so, ought it exercise its discretion to do so?

Mr Coruhlu is Not a Party for the Purpose of Rule 42.3

13 Section 98 of the Civil Procedure Act 2005 relevantly provides: 98 Courts powers as to costs (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. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. 14 Rule 42.3(1) of the UCPR states as follows: 42.3 Powers of the court generally (1) Subject to rule 42.27, the court may not, in the exercise of its powers and discretions under section 98 of the Civil Procedure Act 2005 , make any order for costs against a person who is not a party.

15 In Wentworth v Wentworth (2001) 52 NSWLR 602 the Court of Appeal discussed a precursor to r 42.3, Pt 52A r 4(3) of the Supreme Court Rules 1970 and said (at [162]) (see also Roth v RTA [2009] NSWSC 295 at [61]-[63]): [162] …The effect of Pt 52, and now Pt 52A, is to abolish several traditional categories of jurisdiction to order costs against non-parties discussed in Knight v FP Special Assets Ltd (at 182-190) by Mason CJ and Deane J, and in particular the newly formulated category relating to insolvent persons discussed (at 192-193). While opinions might differ as to the desirability of this abolition, the meaning of Pt 52 and Pt 52A is in this respect plain.

16 In Wentworth it was held that joinder of the non-party Taxing Officer and the Crown, against whom costs orders were sought on appeal, was necessary in order to get around the effect of Pt 52 and Pt 52A (at [166]-[167]).

17 Caution must, in my view, be exercised in applying authorities such as Knight v FP Special Assets Ltd (1992) 174 CLR 178 that predate the legislative changes specifically excluding costs awards against non-parties. As the High Court noted recently in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 (at [31]-[33] footnotes omitted): [31] …That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.

[32] In a decision relying in part on what was said in Knight , the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd held that "generally speaking, where a non-party promotes and funds proceedings by an insolvent company solely or substantially for his own financial benefit, he should be liable for the costs if his claim or defence or appeal fails".

[33] These authorities and the cases cited in them did not require characterisation of non-party funding arrangements, which attracted the discretion to award costs against the non-party, as an abuse of process. The requirement for that characterisation in this case is imposed by UCPR, r 42.3.

18 Caution must also be exercised in applying cases that involve costs orders against third persons who actually participated in the proceedings such as intervenors or recipients of subpoenas who have unsuccessfully resisted production. These decisions are far removed from the facts of the present case. 19 However, this is not to say that in some circumstances a person who has participated in the proceedings, although not on the record, may nonetheless be considered to be a party (Roth at [66] citing Law Society of New South Wales v Jackson (1981) 1 NSWLR 730 and In the matter of Bauhaus Pyrmont Pty Ltd (in liq) (2006) 67 NSWLR 289 at [12]. See also Yakmor v Hamdoush (No 2) [2009] NSWCA 284 at [39]-[41]). The word "party" is not defined in either the UCPR or CPA.

20 Thus as was summarised in Roth (at [67]-[69]): [67] In Jackson (supra), Samuels JA (with whom Reynolds and Mahoney JJA agreed) said, at 735:- "A party, essentially, is a person who takes part in legal proceedings, and that is the definition to be found in Jowitt's Dictionary of English Law, at p 1302. It cannot reasonably be doubted that the council took part in these proceedings." [68] In Bauhaus (supra), Austin J at [19] observed that there was no general definition of " party " in the Civil Procedure Act comparable to the definition in s.19 of the Supreme Court Act . The definition of " party " in s.21 of the Interpretation Act 1987, his Honour observed, is unhelpful, although noting that the relevant provisions of the Civil Procedure Act are otherwise very similar to the provisions of the Supreme Court Act .

[69] His Honour also observed that s.98 is not materially different from s.76 of the old Act, and Rule 42.3 is not materially different from Part 52A Rule 4. In that case, the liquidator had caused examination summonses to be issued against various executives in the Multiplex Group, including the Chief Executive Officer, Andrew Roberts, referred as " the Roberts parties ". The Roberts parties had filed an interlocutory process seeking to set aside the issue of the examination summonses and to remove the liquidator. Austin J observed that the terms of s.22 and the definition of " claimed relief " and the absence of a definition of " party " was a matter of no consequence as the Roberts parties were parties to the proceedings as examinees and, therefore, were defendants (namely, persons against whom proceedings were commenced, according to the definition of " defendant " in s.3(1)).

21 In Roth Hall J applied r 42.3 and declined to make a costs order sought on behalf of parties to separate proceedings arising out of the same motor vehicle accident (at [78]). 22 While the applicant cited in support the decision in Bauhaus, in my opinion that case (which was decided after the enactment of the UCPR and CPA) may be distinguished. First, the Robert parties therein were examinees and therefore akin to defendants. Second, they were applicants in the interlocutory process seeking to set aside the examination summonses which was a "claim for relief" as that term is defined in s 22 of the CPA. Therefore pursuant to s 22(3)(b), they became parties to the proceedings and were amenable to an order for costs consistent with r 42.3. Third, the parties in Bauhaus took a visibly active part in the proceedings which consisted of more than shadowy background instruction. On the evidence currently before me this cannot confidently be said of Mr Coruhlu.

23 In Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2008] NSWCA 283 (upheld in Katauskas) the Court of Appeal noted in relation to r 42.3 that (at [72]-[74]):

[72] In my opinion s 98 of the Civil Procedure Act and the UCPR Rule 42.3 cannot be distinguished from the form of the legislation considered in Wentworth . It was submitted that Heydon JA's observations were obiter, but even so, in my respectful opinion, the decision is in this respect plainly correct. The present rule must be construed without regard to the decision of Mason CJ and Deane J in Knight 174 CLR 178 as to the "real party" to litigation. The general rule is now that there is no power to order costs against a third party and the circumstances under which such an order can be made are delineated by the present rule not by judicial exegesis as to the previous law.

[73] The judgment of Mason CJ and Deane J in Knight does, however, give a clue to the provenance of Rule 42.3(2)(c). At 186-187 their Honours set out the following statement by Lord Abinger CB in Hayward v Giffard (1838) 4 M & W 194: "If we were at liberty to consult equity and justice, we should probably make this rule absolute. But the authority of the Courts at Westminster is derived from the Queen's writ, directing them to take cognizance of the suits mentioned in the writs respectively, and thus bringing the parties before them. This being so, they have no power to order any particular individual to come before them at their pleasure. In the present case, if it could have been shewn that Spencer had committed any contempt of Court, or been guilty, in respect of this suit, of any thing in the nature of barratry or maintenance, it would have been another matter; but we cannot make any order against an individual who is not party to any suit before us, nor has been guilty of any contempt, but merely because he has an interest in the event of the suit." Later (at 188) their Honours referred to a statement from the Judicial Committee of the Privy Council in Ram Coomar Coondoo v Chunder Canto Mookerjee (1876) 2 App Cas 186 at 212: "The instances in which persons other than parties to the suit have been held liable to costs in England , have been principally those of solicitors, over whom the Court exercises disciplinary jurisdiction, as in the case of In Re Jones [(1870) LR 6 Ch 497]. The Courts have also ordered the real parties to pay the costs in actions of ejectment, originally on the ground that that action was in form a fictitious proceeding, and having once assumed this power they have continued to exercise it in the actions substituted for that of ejectment. Again, the Courts, it has been said, would so interfere in case of any contempt or abuse of their proceedings: see Hayward v Giffard . But all these cases relate to applications either in the cause itself, or to the summary jurisdiction of the Court." Later (again at 188) their Honours said: "The cases awarding costs against non-parties are more readily explicable on the footing that there was no absence of jurisdiction to order costs against non-parties in the strict sense and that the jurisdiction could be exercised against persons who were considered to be the 'real parties' to the litigation." [74] In my opinion, it is clear enough that the drafting of UCPR Rule 43.2 is inconsistent with there being any general principle that the jurisdiction can now be exercised against persons who are considered to be the "real parties". Furthermore, it is also clear enough that, by picking up the phrase "contempt or abuse" from Ram Coomar Coondoo , it was intended to refer to actual rather than prospective contempt or abuse of the proceedings. Authorities (such as Dymocks [2004] UKPC 39 and Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) [2008] FCAFC 158; (2008) 170 FCR 595) in relation to jurisdictions which do not have an equivalent to the current UCPR provisions are of no assistance.

24 By contrast in Yakmor, the Court of Appeal held that a tutor appearing on behalf of a person with a disability was a "party" for the purpose of r 42.3 of the UCPR and ordered the tutor to pay costs. This was because the tutor was appointed principally to bring and conduct the proceedings on behalf of a person who, through legal incapacity, cannot do so himself or herself (at [44]).

25 In Katauskas the plaintiff in commercial litigation before the Supreme Court of New South Wales was impecunious and had entered into a litigation funding agreement with a non-party. However, when the plaintiff was unsuccessful the funder did not indemnify the plaintiff in respect of the order for costs. Accordingly, the defendant applied for an order that the third party funder pay the shortfall in costs that the plaintiff could not meet on the basis that its failure to do so was an abuse of process under r 42.3(2)(c) thereby avoiding the prohibition in r 42.3(1).

26 By majority, the High Court held (French CJ, Gummow, Hayne and Crennan JJ, Heydon J in dissent) that the failure of the third party funder to meet its obligations under the agreement was not an abuse of process. In reaching this conclusion the Court emphasised that "proper weight must be given to the fact that under the UCPR the rule is that costs are not to be entered against a non-party save in exceptional circumstances" (at [41]). Thus because there was no abuse of process and the rule was that non-parties were not to be made the subject of costs orders, there was no power to so order (at [41]-[44]).

27 In arriving at the conclusion it did the High Court made the following observations concerning the history of r 42.3 of the UCPR (at [22]-[24] footnotes omitted):

[22] The precursor of UCPR, r 42.3 was to be found in Pt 52, r 4 and later in Pt 52A, r 4 of the Supreme Court Rules 1970 (NSW). They contained provisions almost identical in terms to UCPR, r 42.3.

[23] There is a dispensing power in respect of the UCPR. Section 14 of the CP Act provides: In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case. This Court raised with counsel for Jeffery & Katauskas whether the general power given by s 14 of the CP Act could not have been engaged in this case. Counsel's response made it clear that the case advanced was based entirely on UCPR, r 42.3(2)(c). It is no doubt arguable that the reference to "any requirement of rules of court" in s 14 limits its application to rules imposing some duty on parties and does not extend it to a rule imposing limitations on the power of the court to order costs. The parties did not pursue the matter in these appeals. They fall to be decided on the construction and application of UCPR, r 42.3.

[24] The rule-making powers conferred by the Supreme Court Act 1970 (NSW) and by the CP Act, authorised the making of rules which may limit the powers conferred by those Acts to award costs. The purpose of Pt 52A, r 4 was the same as its precursor, Pt 52, r 4, which was introduced by amendment to the Supreme Court Rules in 1993. That purpose was "to restrict the power of the Court in making a costs order against a person who is not a party". It applies also to UCPR, r 42. As was said in Wentworth v Wentworth , the effect of the amendment was "to abolish several traditional categories of jurisdiction to order costs against non-parties" which had been discussed by this Court in Knight v FP Special Assets Ltd .

28 I agree with the doubts expressed by their Honours as to the limits of the application of s 14 of the CPA in the present case. In any event, as it was not raised in this application, it does not fall to me to decide the issue. 29 After having reviewed the decisions above, I do not consider, on the available evidence that Mr Coruhlu's participation in the proceedings has been sufficiently visible or active to warrant his inclusion within the ambit of the term "party" as that concept is employed in r 42.3, thereby enlivening the Court's power to award costs against him.

30 In coming to this conclusion I am troubled by the fact that the evidence does not wholly disclose Mr Norton's relationship with Mr Coruhlu. I do not accept as complete or satisfactory the explanation given by Mr Norton as to why he permitted himself to continue to be the named applicant in the proceedings, especially after he became aware that he could be liable for costs. While Mr Norton gave unchallenged evidence which demonstrated that Mr Coruhlu engaged in the proceedings to the extent of giving instructions, this was the high point of his participation. Furthermore, the evidence does not adequately demonstrate to me that Mr Norton did not take any active role whatsoever in the proceedings, particularly given that he was copied into the most of the correspondence that passed between Mr Coruhlu and Horowitz & Bilinsky. 31 Given that Mr Norton seeks an order that all of the costs for which he is liable to pay the council are to be passed on to Mr Coruhlu, these matters would necessarily, even if I determined that I had the power, which I do not, preclude the relief he seeks against Mr Coruhlu as a matter of discretion.

32 Rather, in my opinion, the evidence reveals a somewhat factually analogous situation to that contained in Katauskas. That is to say, there was an agreement between Mr Coruhlu and Mr Norton for Mr Coruhlu to indemnify Mr Norton for all costs associated with the proceedings. Merely because Mr Coruhlu has not honoured this agreement does not result in an enlivening of the Court's power to award costs against him as a non-party absent joinder. This is so, in my view, notwithstanding Mr Coruhlu's role and interest in the proceedings was less passive than that of the funder in Katauskas.

33 I therefore find that for the purpose of r 42.3 Mr Coruhlu is not a party to the proceedings and that I have no power to make an adverse costs order against him absent joinder.

Can and Should Mr Coruhlu be Joined as a Party to the Proceedings?

34 Rules 6.24(1) and 6.26 of the UCPR state as follows: 6.24 Court may join party if joinder proper or necessary (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

(1) Except to the extent to which these rules expressly provide, a party may not join another person as a party to any proceedings for the purpose of making an application for costs against the other person. (2) This rule does not apply: (a) if the other person would otherwise be a proper party to the proceedings, or (b) if the party joins the other person by means of a cross-claim in respect of a claim for costs against the party.

35 In Charlton v Moore [2009] NSWLEC 61 Biscoe J stated (at [2] see also White City Tennis Club Ltd v John Alexander's Clubs Pty Ltd (No 2) (2009) 261 ALR 112 at [38]): [2] In my opinion, the appropriate test for joinder is that adopted in News Limited v Australian Rugby Football League Limited [1996] 64 FCR 410 at 524. There the Full Court of the Federal Court, in the context of an equivalent rule of the Federal Court, adopted the following test for joinder proposed by Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 (at 55-56): "'A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?' An order which directly affects a third person's rights against or liabilities to a party should not be made unless the person is also joined as a party. If made, the order will be set aside." 36 It would appear from the evidence that Mr Coruhlu is a person who would otherwise be a proper party to the proceedings. Or put another way, while the proceedings were on foot, "ought to have been joined as a party" because the outcome of the proceedings would have affected his rights and liabilities given his interest in the property proposed to be developed. Had Mr Norton made the application prior to his discontinuance of the proceedings, it is therefore likely that he would have been joined as an applicant.

Does the Court Have Jurisdiction to Join a Person as a Party After Proceedings Have Been Discontinued?

37 Problematically, in my opinion, Mr Norton discontinued the proceedings almost a year prior to this application being filed. He did so in circumstances where he certified that "the Applicant does not represent any other person" on the notice of discontinuance (as required by r 12.1(2)(a) of the UCPR). On one view this representation was incorrect given his asserted connection to Mr Coruhlu. His situation is rendered all the more acute, in my view, because he has not sought to set aside the discontinuance as part of the application. It is in this context that the issue of whether the Court had jurisdiction to join Mr Coruhlu arises.

38 Rule 12.1 of the UCPR relevantly states as follows: 12.1 Discontinuance of proceedings (1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant: (a) with the consent of each other active party in the proceedings, or (b) with the leave of the court.

(2) A notice of discontinuance: (a) must bear a certificate by the plaintiff, or by his or her solicitor, to the effect that the plaintiff does not represent any other person, and (b) except where it is filed with the leave of the court, must be accompanied by a notice from each party whose consent is required by subrule (1) to the effect that the party consents to the proceedings being discontinued in accordance with the notice of discontinuance.

39 It is also worth noting that r 12.3(1) provides that: 12.3 Effect of discontinuance (1) A discontinuance of proceedings with respect to a plaintiff's claim for relief does not prevent the plaintiff from claiming the same relief in fresh proceedings. 40 However, merely because the proceedings have been discontinued does not mean that a party to the proceedings is precluded from seeking supplemental or ancillary relief. The first Norton decision is an example of a permissible post-discontinuance application.

41 In Caboolture Park Shopping Centre Pty Ltd (in Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 (at 235) the Full Federal Court of Australia stated: There are many cases where supplemental orders will be made and the jurisdiction, while in no doubt requiring caution, is not limited merely…to the making of orders in aid of the enforcement and working of original orders…

42 In Caboolture the respondent obtained judgment on a cross-claim against the applicant including an order for costs. The applicant subsequently went into liquidation and the respondent sought a supplemental costs order against the applicant's solicitors making them liable for those costs. The Court held that it had jurisdiction to make such an order particularly as the making of it would not require the Court to vary or alter the judgment given by it in the proceedings (at 235).

43 In UTSA Pty Ltd (In liquidation) v Ultra Tune Australia Pty Ltd [1999] 1 VR 204 Chernov J held that the Court had jurisdiction to consider an application for costs payable by a non-party after judgment had been handed down. The Court (citing Caboolture and Akedian Co Ltd v Royal Insurance Australia Ltd [1999] 1 VR 80) agreed with the characterisation of the orders sought as (at [9]): …truly supplemental and do not affect the legal impact of the earlier judgment. In my opinion, the consideration by the court of an application for costs against a non-party, even after it has given judgment on the issue of costs inter partes in the proceeding, would amount to the exercise of a new discretion and not a re-agitation of issues previously considered. In other words, it would not involve re-consideration of matters that had been decided on an earlier occasion. Whether the court proceeds to exercise that jurisdiction, however, is a separate question.

44 In Akedian Byrne J held that orders sought against underwriters, who were not parties to the proceedings, that they pay the plaintiff's costs after judgment was entered against the defendant, were supplemental and did not affect the legal impact of the judgment that had earlier been pronounced and were therefore permissible.

45 Mr Norton relied on the decisions of Orbell v Bundaleer Lodge Nursing Home Pty Ltd [1988] 1 Qd R 152, Gold Reefs of Western Australia v Dawson [1897] 1 Ch 115 and Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2005] 1 NZLR 145 to support the proposition that discontinuance of the proceedings by him did not preclude an application for the joinder of Mr Coruhlu because the discontinuance did not alter the status of the parties or prevent subsequent applications being brought by them.

46 In Orbell the plaintiff brought proceedings against the first and second defendants. The plaintiff then issued a notice of discontinuance in relation to the second defendant. The first defendant was not notified of the discontinuance against the second defendant and issued a notice of contribution or indemnity to the second defendant. The first defendant then sought to bring an application seeking to amend the summons to join the second defendant to the proceedings. The issue raised in Orbell was whether the notice of discontinuance was effective (and not whether given the discontinuance the former second defendant could be joined as a party). The Court found that the notice of discontinuance was not effective and that the second defendant remained a party to the proceedings (at 156).

47 In Gold Reefs a company named as co-plaintiffs in an action served a notice of motion to strike out the company name and asked that the solicitors who had issued the writ be ordered to pay the company's costs on the ground that the company name had been used without authority. Before the motion could be heard, the solicitors served a notice on the defendants wholly discontinuing the action. The Court held that notwithstanding the discontinuance, it had jurisdiction to make the costs order because the company's name had been used without authority.

48 In Dymocks a successful party on appeal to the Privy Council applied for costs against a non-party after final judgment had been given and sealed and after an award of costs had been made against the unsuccessful parties who had become insolvent. The non-party had funded the insolvent parties. The Privy Council held that its jurisdiction to make the costs order sought had not been exhausted by its final judgment against the insolvent parties. This was because the order sought was supplemental only and did not vary the final judgment.

49 In my view, these cases are of limited assistance to the facts of this application. In none of the three decisions were the third parties sought to be joined to the proceedings. Moreover, in two of the cases (Orbell and Goldreefs), the third parties against whom costs were sought had at some point been parties to the principal proceedings.

50 Having said this, the authorities nevertheless reveal that the Court has jurisdiction to make ancillary or supplemental orders after the proceedings are discontinued at least in respect of costs. The existence of this jurisdiction is reinforced by the language of s 98(3) of the CPA which, in my view, plainly contemplates costs applications after the proceedings have been concluded by reason of, for example, discontinuance.

51 But as discussed above, this supplemental jurisdiction has been curtailed by the clear terms of r 42.3. Any costs order made after the proceedings have been discontinued must nevertheless conform with the dictates of the CPA and the UCPR, and in particular, r 42.3.

52 The present application seeks an exercise of the Court's ancillary discretion first, in respect of joinder and second, in respect of costs. The decisions above are not concerned with the exercise of this discretion in respect of joinder. They are therefore of narrower application to the facts of the present case.

53 Whilst not wishing to suggest a wider supplemental jurisdiction to join parties after discontinuance (because it is not a matter that I am required to decide at present), I find that I do have a supplemental jurisdiction to join a party to proceedings for the purpose of making an application for costs notwithstanding that the proceedings have been discontinued (provided, of course, the person would otherwise be a proper party to the proceedings: see r 6.26(2)(a) of the UCPR). Such an order would not vary or impact upon the final judgment made in the proceedings. Such an order would not contravene the statutory regime in respect of costs set out in r 42 of the UCPR. Further, there is nothing contained within s 39A of the Land and Environment Court Act 1979 that derogates from this conclusion.

54 Turning then to the question of the exercise of my discretion, I am disinclined to join Mr Coruhlu as a party to the proceedings for the following reasons: (a) first, the same party seeking joinder discontinued the proceedings in circumstances where a representation was made to the Court that he did not represent "any other person", which presumably included Mr Coruhlu;

(b) second, the lengthy passage of time between the discontinuance and the application for joinder (almost a year). While I accept that it was not until the council filed its motion to for costs against Mr Norton that it became pressing for him to seek the relief the subject of this application, he ought to have nevertheless sought to join Mr Coruhlu as a party much earlier than he did as a precautionary measure;

(c) third, the unsatisfactory explanation by Mr Norton for his delay in making the application;

(d) fourth, the unsatisfactory explanation as to why Mr Norton permitted the proceedings to continue in his name after he became aware that he may be liable for costs. In this regard I note that as a licensed real estate and business agent and strata manager it may be assumed that he was not a vulnerable litigant; and

(e) fifth, the fact that Mr Norton is not precluded from seeking relief elsewhere in respect of the indemnity he claims was given to him by Mr Coruhlu (r 12.3(1) of the UCPR). 55 For these reasons, while I accept that I have jurisdiction to join Mr Coruhlu as a proper party to the proceedings, and while multiplicity of proceedings should, as a general rule, be avoided, in my view, in all the circumstances it is now too late for the relief to be granted.

56 This conclusion precludes me from having to decide whether, were Mr Coruhlu joined, it would be fair and reasonable for him to either wholly, or in part, pay costs pursuant to r 3.7 of the Land and Environment Court Rules 2007. In light of the discretionary matters referred to above and the matters set out at [5] in the first Norton decision, I would be disinclined to make such an order in any event.

57 While some sympathy may be expressed for the plight in which Mr Norton now finds himself given that Mr Coruhlu had agreed with Mr Norton that he would accept liability for the costs of the proceedings, and moreover, given that the council appears to have agreed with Mr Coruhlu that he would pay their costs, for the reasons given above the Court declines to grant Mr Norton the orders he seeks.

58 Rather, it would appear from the evidence that Mr Norton must pursue his claim for relief against Mr Coruhlu in another forum with another suit. 59 Alternatively, if the very serious allegations that Mr Norton has made against Horowitz & Bilinsky have substance (in saying this I am mindful of the fact that Horowitz & Bilinsky did not participate in the hearing of the motion and thus did not have the opportunity of refuting the claims made against it), he may choose to seek relief against them.

60 The motion for joinder must therefore fail. The formal order of the Court is that the motion is dismissed.

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