Perre v State of New South Wales

Land and Environment Court (NSW)|2009-04-16|Before: Biscoe J, Mr P, Mr J

CITATION : Perre v State of New South Wales [2009] NSWLEC 51 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANTS: Guiseppina Perre Domenico Perre Sebastian Mifsud Rozaria Mifsud Lien Chi PARTIES : Kam Fang Su

FIRST RESPONDENT: State of New South Wales

KEY ISSUES: COSTS :- of discontinued judicial review proceedings in Class 4 of the Court's jurisdiction - legal principles as to onus and discretion.

Civil Procedure Act 2005, s 98(1) EPA Act, ss 7, 9, 75B, Part 3A LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991, s 11, 14(2) State Environmental Planning Policy (Infrastructure) 2007, cll 6(2), 78 Uniform Civil Procedure Rules 2005, r 12.1(1), 42.19, 42.20 Western Sydney Parkland Act 2006

Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 Brent v Levick [2009] NSWLEC 40 CASES CITED: Canterbury City Council v Abdo [2008] NSWLEC 275 Edwards Madison Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 Kiama Council v Grant [2006] NSWLEC 96, (2006) 143 LGERA 441 One.Tel Ltd v Commissioner of Taxation 2000 FCA 270, 101 FCR 548 Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

APPLICANTS: Mr P. King SOLICITORS: McKell's Solicitors LEGAL REPRESENTATIVES: FIRST AND SECOND RESPONDENT: Mr J. Webster SC SOLICITORS: Hunt & Hunt

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

GUISEPPINA PERRE & ORS v STATE OF NEW SOUTH WALES & ANOR

JUDGMENT 1 HIS HONOUR: The issue before the Court, in these discontinued judicial review proceedings in Class 4 of the Court's jurisdiction, is whether a costs order should be made against the applicants or the respondents or whether there should be no costs order. 2 The applicants seek an order that the respondents pay the applicants' costs up to the time when they indicated to the Court that they proposed to discontinue (12 December 2008), and thereafter each party should pay their own costs, except that the respondents should pay the costs of the parties' respective costs notices of motion. The respondents seek an order that the applicants pay the respondents' costs. Both parties request that costs be reserved as from the commencement of the costs hearing before me on 16 April 2009.

3 The parties' submissions roamed over the history of the matter, particularly the procedural history which it is therefore necessary to set out in some detail, as well as the merits of the applicants' substantive claims and the conduct of the parties.

The Applications 4 By an Application filed on 31 October 2008 seven applicants sought the following relief against the State of New South Wales, Western Sydney Parklands Trust (the Trust) and the Minister for Planning:

"1. Declaration that the decision of the Respondents or one of them by their servants or otherwise agents to issue acquisition notices to Domenico and Guiseppina Perre, Sebeastian [sic] and Rozaria Mifsud, Ronald Crowe and Lien Chi and Kam Fang Su, being applicants named in the schedule made on or about 1 August 2008 is void and of no effect.

Order in the nature of a writ of prohibition against the Respondents form proceeding to implement the decision or decisions referred to in paragraph 1.

Injunctive relief preventing the Respondents or one of them from acquiring by compulsion or under statute the land of the Applicants specified in item 1 under Details of Application, including interim relief.

Declaration that the decisions of the respondents or one of them made on or prior to August 2008 to make a planning instrument or proposal with respect to the optional Northern rail alignment for the South West Rail Link is void and of no effect.

Declaration that the decisions made by the First Respondent by its servants or agents or in conjunction with the Second and/or Third Respondents to make the Metropolitan Strategy for the South West Growth Centres or Sub Strategy relating thereto including Precincts thereof and the Structure Plan or amendments thereof is void and of no effect." 5 The subject of prayers 1, 2 and 3 is the alleged invalidity of proposed acquisition notices (PANS) issued to the applicants under s 11 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act). The proposed acquisitions were for the purpose of the South West Rail Link. There was no significant evidence nor submissions which would support the challenges to the different decisions referred to in prayers 4 and 5 of the Application. The best that can be said of those challenges, for present purposes, is that they seem to have been almost ignored by the applicants in the proceedings and therefore there was nothing positive to which the respondents had to respond. History 6 The NSW government proposed to build the South West Rail Link, a public transport facility, between Glenfield and Leppington. A cabinet minute of 26 October 2005 noted a previous cabinet decision to approve the acquisition of rail corridors for the Metropolitan Rail Expansion Program and moneys budgeted for that purpose; and noted that any acquisition of surface corridors would be undertaken by the Department of Planning. 7 The seven applicants to these proceedings, as originally constituted, are land owners in the Leppington/Rossmore area of Western Sydney. Between January 2007 and August 2008 the Minister negotiated unsuccessfully with them to acquire their land voluntarily. 8 On 7 April 2006 the Minister for Planning, pursuant to s 75B of the Environmental Planning and Assessment Act 1979 (EPA Act) , declared the construction and operation of the South West Rail Link to be a project to which Part 3A of the EPA Act applies. On 29 August 2007 the Minister Administering the EPA Act granted concept plan approval under Part 3A of the EPA Act for the South West Rail Link.

9 On 2 July 2008 the Minister approved the issue of PANS in relation to the subject lands. 10 On 1 August 2008 the Department of Planning issued a PAN to each of the applicants. Paras 1-3 of each PAN stated:

"We refer to our ongoing attempts to negotiate the acquisition of the whole of property [relevant property's address inserted] to commence the proposed South West Rail Corridor. The Minister for Planning has resolved to acquire the property for the public benefit by compulsory acquisition. Accordingly, a Proposed Acquisition Notice is given and enclosed, pursuant to Section 11 of the Land Acquisition (Just Terms Compensation) Act 1991.

It is stressed that the Department is prepared to make every effort to resolve the matter and it is suggested that contact be made with David Barr on 9895 7242 or Deanne Aiken on 9895 7950." 11 The "public benefit" referred to in the PANS was the construction of the rail corridor for the proposed South West Rail Link. 12 On 18 August 2008 the Minister applied to the Governor and Executive Council for consent to compulsorily acquire the subject lands. Such consent was granted on 28 August 2008.

13 On 31 October 2008 the applicants obtained an ex parte injunction restraining the first and third respondents, the State of New South Wales and Minister for Planning, from taking any steps specified in the PANS and from resuming by compulsory means the applicants' property, up to 7 November 2008.

14 On 4 November 2008 the applicants' solicitors, McKell's, wrote to the respondents' solicitors, Hunt & Hunt, stating inter alia:

"We note that on the afternoon of Friday 30 October 2008 the State Government announced it did not propose to proceed with the South West Rail Link. We also note a mini-budget is expected on 11 November 2008 which may affect the position of your client in relation to this matter.

In the circumstances we suggest the matter be stood over for 21 days, noting we have yet to hear from any of the other Respondents." 15 On 6 November 2008 Hunt & Hunt replied:

"We refer to your letter dated 5 November 2008 and advise that our client will object to the adjournment tomorrow.

The Minister had determined that in respect of the Applicant's [sic] before the court in this matter, it is only in respect of the land owned by Ronald Crowe that the Government will be seeking to have acquired in the Government Gazette dated 21 November 2008.

In the circumstances and due to the fact that the Pan Notice has already been issued to your client in excess of 90 days, and that the time for acquisition on the current pan Notice expires on the 27 November 2008, and therefore we will oppose the continuation on the ex-parta [sic] injunctions in these matters. We have been instructed to advise that on behalf of Western Sydney Parklands Trust, the Trust land is not part of the proposed rail corridor.

Would you please advice [sic] whether the other Applicants would agree to the rescission of the current Pan Notice that has been served upon them." 16 McKell's replied on 6 November 2008 stating inter alia that they found Hunt & Hunt's letter in part contradictory and unclear. 17 On 7 November 2008 Hunt & Hunt replied as follows:

"We refer to your letter dated 6 November 2008. We are seeking instructions from our client and attached a copy of draft Directions which we intend to hand up in Court this morning.

Contrary to our previous advice we cannot now confirm that the Minister will not proceed with the Acquisition of the other properties .

At the hearing of the Motion this morning we will be seeking to have the matter expedited and heard no later than the 17 November 2008, if your client's [sic] does not agree with the draft directions that are enclosed."

(emphasis added) 18 This letter contradicted paragraph 1 of Hunt & Hunt's earlier letter of 6 November 2008. The solicitor who wrote the letters was cross-examined and conceded that the Minister had in fact not made the determination referred to in paragraph 1 of the letter of 6 November at the time that letter was written, but that Hunt & Hunt had been instructed to send the letter and did so. 19 It is common ground that on 7 November 2008 the interlocutory injunction was continued. The matter was listed for an interlocutory injunction hearing on 18 November 2008 before me and directions were made for the filing and service of evidence.

20 On 17 November 2008 Hunt & Hunt wrote to McKell's stating, inter alia, that they would be requesting the Court to substitute the Minister Administering the EPA Act for the Minister for Planning as the third respondent because the applicants had joined the wrong party. Enclosed with the letter was a copy notice of motion returnable the next day which sought such an order, an order that the Trust be removed as a party and an order for costs.

21 On 18 November 2008, some hours after the mater was called on for hearing, by consent the interlocutory injunction hearing did not proceed and instead consent orders were made, including directions to progress the matter towards a final hearing. The Minister for Planning was removed as the third respondent and the Minister Administering the EPA Act was substituted as the second respondent. The interlocutory injunction was discontinued and substituted by a similarly worded undertaking to the Court by the first and second respondents. The parties agreed to extend the period referred to in s 14(2)(a) of the Just Terms Act until determination of the proceedings. The matter was listed for further directions on 13 February 2009.

22 Another consent order made on 18 November 2008 was that the Trust be removed as a respondent. The Trust had been joined as the second respondent in the mistaken belief that the proposed South West Rail Link would proceed through land in the vicinity of the Western Sydney Parkland owned by the Trust, and that unless the Trust surrendered such land it was impossible for the other respondents to construct the South West Rail Link. The belief seems to have been based on an inference drawn from viewing a large sign, which included the words "The Western Parklands. A NSW Government Initiative. These lands have been purchased by the NSW Government to create the Western Parklands". The sign did not refer to the Trust. The belief was mistaken because although the Western Sydney Parkland Act 2006 vested the Western Sydney Parklands in the Trust, the land that formed part of the South Western Rail corridor was excluded from that vesting. The mistake was brought to the applicants' attention by the respondents. On 18 November 2008, the applicants consented to an order removing the Trust as a respondent. The respondents' submit that, the Trust should have its costs of the proceedings, whilst acknowledging that the discrete costs attributable to the joinder of the Trust would be relatively small.

23 On the same day, 18 November 2008, the Department, without prior notice, wrote to each of the applicants except Mr Crowe in the following terms:

" With the deferral of construction of the proposed South West rail line the Department will not be proceeding with the compulsory acquisition under the Proposed Acquisition Notice issued 1 August 2008 of that part of your property that is required for the line .

The Department remains willing to acquire the land required for the construction by negotiation and your indication as to whether you wish to continue negotiations would be appreciated.

Please also advise if you wish to make a claim under S.69 of the Land Acquisition (Just Terms Compensation) Act 1991 (copy attached)."

(emphasis added) 24 Obviously, this letter would prompt the recipients to consider that the challenge to the validity of the PANS was pointless. The contents of the letter are difficult to reconcile with the stance taken by the respondents on the same day when the parties agreed to progress the matter towards a final hearing.

25 I accept the evidence of Mr David Barr, an officer of the Department of Planning, was that the government's budget at that time deferred construction of Phase 2 of the South West Rail Link, in which the subject lands were located, but did not affect the budget for the acquisition of lands within Phase 2. Nevertheless it was decided that, because of the deferral, those lands should not be acquired under the PANS. 26 On 27 November 2008 Hunt & Hunt wrote to McKell's:

"We are instructed to advise that with the deferral of construction of the proposed South West Rail Link the Department of Planning will not be proceeding with the compulsory acquisition under the Proposed Acquisition Notices issued 1 August 2008 in relation to Mr D and Mrs G Perre, Mr S and Mrs R Mifsud and Mr L and Mrs K Su. We enclose a copy of the letters to Mr and Mrs Perre, Mr and Mrs Mifsud and Mr and Mrs Su dated 18 November 2008 sent to your clients by the Office of Strategic Lands." 27 On the same date Hunt & Hunt wrote a further letter to McKell's:

"We refer to our letter of even date in relation to the Proposed Acquisition Notices. Would you please advise whether the land owners who fall within phase 2 of the South West Rail Link will be withdrawing from the present proceedings." 28 On 5 December 2008 McKell's wrote to Hunt & Hunt:

"Further to recent communications, it appears from the recent public announcement that the Government proposes to proceed with a partial corridor to Cowpastures Road.

Would you please advise in writing within 14 days whether or not your client proposes to proceed with the compulsory acquisition of Mr Crowe's land and if so, at what price.

If you propose to withdraw the PAN we would be obliged if you would inform us immediately due to Mr Crowe's age, his poor health and his personal family circumstances at Edmonson Park.

We look forward to your response before the matter is re-listed on 12 or 16 December 2008." 29 On the same day McKell's replied as follows:

"In this matter the First Respondent has withdrawn the proposed acquisition notices dated 1 August 2008 in respect of Mr & Mrs Perre, Mr & Mrs Su and Mr & Mrs Misfud [sic].

In the circumstances we have instructions to discontinue in this matter in relation to those applicants.

We consider your client should pay the costs of the Applicants in these proceedings.

We reserve the right to claim indemnity costs having regard to your letter of 6 November 2008 in the event our proposal is not accepted.

Having regard to the position of Mr Crowe and especially his age, his health and the location of his land and the recent public announcement regarding the partial, not complete, making of the proposed corridor to Cowpastures Road, we are prepared to discontinue with each party to pay his or their own costs in his case.

In the meantime we propose to have the matter re-listed on 12 or 16 December 2008 to vary the directions of the Court made on 18 November 2008." 30 On 5 December 2008 McKell's wrote to the Registrar of the Court seeking to have the matter re-listed. 31 On 9 December 2008 Hunt and Hunt wrote to McKell's:

"We acknowledge receipt of your letter 5 December 2008 and reply as follows:

The first respondent has not withdrawn the Proposed Acquisition Notices dated 1 August 2008 in relation to Mr and Mrs Perre, Mr and Mrs Su and Mr and Mrs Misfud [sic]. The second respondent has allowed the Proposed Acquisition Notices to lapse. We are instructed to advise that our clients shall consent to the discontinuance of the proceedings commenced by Mr and Mrs Perre, Mr and Mrs Su and Mr and Mrs Misfud [sic] subject to an order in favour of our clients paying their reasonable costs.

In relation to Mr Crowe, it is the intention of the Minister Administering the Environmental Planning & Assessment Act 1979 to compulsorily acquire that part of Mr Crowe's land which is required for the South West Rail Link. The Minister does not as yet have a figure for compensation, and that will be determined after acquisition in accordance with the provisions of the Land Acquisition (Just Terms Compensation) Act 1991. We are instructed to advise that the respondents shall consent to Mr Crowe discontinuing the proceedings subject to an order for Mr Crowe to pay our clients reasonable costs." 32 On 12 December 2008 Hunt and Hunt served an affidavit in which the solicitor deponent set out the history of the matter and requested that the Court, in allowing the applicants to discontinue, make an order for costs in favour of the first and second respondents. 33 The matter was re-listed before the List Judge on 12 December 2008. The Court was informed that settlement was likely but not finalised. The costs of the day were reserved. The matter was stood over to 6 February 2009 before the List Judge.

34 On 22 December 2008 the applicants filed a notice of motion seeking leave to discontinue the proceedings and an order that the respondents pay their costs.

35 On 30 January 2009 the first and second respondents filed a notice of motion for orders that the applicants pay their costs and the costs of the Trust (previously the second respondent).

36 On 6 February 2009, the parties obtained a hearing date for the notices of motion on 16 April 2009. There were directions for a timetable for evidence and submissions.

37 On the same day, by consent, Mr Crowe discontinued his proceeding on the agreed basis that he and the respondents would pay their own costs.

38 On 16 April 2009, by consent, I granted leave to the other applicants to discontinue their proceedings and proceeded to hear the costs motions.

39 There is hearsay evidence that on 4 November 2008 another Leppington resident who had received a PAN, spoke by telephone to Mr David Barr of the Department of Planning who said, in effect, that these proceedings would fail, that the Department had acquired land and built even in another 20 years, and that he did not reply to a question whether this was a ploy to take their properties and then scrap the project and for the government to rezone the land and sell it off to the Town Centre. This was put to Mr Barr in cross-examination and he largely did not recall it. The applicants placed some reliance on this hearsay evidence. I am not prepared to make any findings as to these conversations on these costs applications. In any case, I do not regard it as significant on the costs applications.

Costs Principles 40 The unchained discretion in s 98(1) of the Civil Procedure Act 2005 is chained in the case of a discontinuing applicant by s 42.19(1) of the Uniform Civil Procedure Rules 2005. Section 98 provides:

(1) Subject to rules of court and to this or any other Act:

(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." 41 Rule 12.1(1) of the Uniform Civil Procedure Rules 2005 provides as follows:

(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." 42 UCPR 42.19 governs the costs discretion in the case of discontinuance. It is convenient to also set out 42.20 since it is a comparable provision:

(1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1.

(2) Unless the court orders otherwise or the notice referred to in rule 12.1 (2) otherwise provides, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued.

(1) If the court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed.

(2) If the court makes an order striking out a defence, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the defendant must pay the plaintiff's costs of the proceedings in relation to those matters in respect of which the defence has been struck out." 43 In Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 at [54] Hodgson JA (Tobias JA agreeing) held:

"However, like UCPR 42.20, UCPR 42.19 states what the order for costs is to be unless there is a discretionary decision to order otherwise: Australiawide Airlines Limited v Aspirion Pty Limited [2006] NSWCA 365 at [53]. This means there is an onus on the discontinuing party to make an application in respect of costs if it does not propose to pay the costs of the other parties: Foukkare at [65]. In my opinion, it also means that there must be `some sound positive ground or good reason for departing from the ordinary course': Australiawide Airlines at [54]." 44 In Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624 - 625, McHugh J held in a passage that has often been quoted:

"When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action…

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried…

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution becomes futile, the proper exercise of the costs discretion will usually be that the court will make no order as to the costs of the proceedings. This approach has been adopted in a large number of cases…" 45 McHugh J's observations as to the usual outcome were directed to an unchained discretion in the High Court Rules whereas, in contrast, UCPR 42.19 and 42.20 create a starting point by requiring that "the plaintiff must pay the defendant's costs of the proceedings" unless that outcome is displaced by a discretionary decision. Consequently, observance of the starting point under UCPR 42.19 and 42.20 "will make this outcome less usual than it earlier was": Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 at [48] per Bryson JA (McColl JA agreeing). The latter case was concerned with UCPR 42.20 but, in my view, must apply equally to UCPR 42.19. That appears to have been the view of Basten JA in Bitannia at [78]. In Australiawide Airlines Basten JA said that in order to avoid the statutory starting point, it was necessary for the plaintiff to show some additional factor, such as that the defendant's conduct led it to the reasonable belief that litigation was necessary to enforce its right: at [65]. 46 Where an applicant discontinues proceedings, there is a distinction between a surrender or abandonment by the applicant and a supervening event rendering the proceedings futile or removing the applicant's cause of action. That categorisation appeared in One.Tel Ltd v Commissioner of Taxation [2000] FCA 270, (2000) 101 FCR 548 at 553 [6] and was adopted by the NSW Court of Appeal in Edwards Madison Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 at [5] and Australiawide Airlines at [50] - [51]. In One.Tel at 553 [6] Burchett J said:

"In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the court's discretion otherwise than by an award of costs by the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs."

47 In Kiama Council v Grant [2006] NSWLEC 96, (2006) 143 LGERA 441 at [80] Preston J summarised the principles similarly but more comprehensively:

"The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits:

(a) where one party effectively surrenders to the other party by:

(i) discontinuing without the consent of the other party; or

(ii) giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party;

the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party; and

(b) where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs, the proper exercise of the costs discretion will ordinarily be to make no order as to costs unless:

(i) one of the parties has acted so unreasonably that the other party should obtain the costs of the action; or

(ii) even if both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried so that the party should obtain the costs of the action." 48 An example of a case falling into the second category is Canterbury City Council v Abdo [2008] NSWLEC 275 (Preston J) where it was found that there was no utility in the further prosecution of civil enforcement proceedings because the alleged wrongdoer had vacated and ceased to use the subject premises. Leave to discontinue was granted and no order for costs was made. 49 The distinction between the two categories is often helpful in exercising the costs discretion, notwithstanding that neither category can be precisely defined, the boundary between them is unclear and other factors may be relevant. These qualifications were noted by Basten JA in Bitannia at [79] - [81], as follows (omitting some citations):

"In some circumstances it may be argued that a discontinuance does not involve a surrender or abandonment by the plaintiff, but recognition that "some supervening event" has militated against success, rendered the proceedings futile, or wholly removed the plaintiff's cause of action...

There may be cases in which the distinction sought to be drawn in One.Tel Ltd is of assistance: however, neither category can be precisely defined, nor is the boundary between them clear. For example, in Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129; 153 IR 386 discontinuance could be explained by reference to a legislative amendment which removed the applicant's hopes of success. Amending legislation may readily be characterised as a supervening event, but in Newcastle Wallsend , a further question arose as to whether discontinuance in fact flowed from reliance upon the amending legislation, or from an earlier decision of the Court which indicated that the applicant would be unsuccessful if it pursued its claim…

As has been noted on more than one occasion, the variety of relevant factors renders it difficult to reduce the exercise of discretion by characterisation of the reason for discontinuance: see, eg, O'Neill v Mann [2000] FCA 1680 at [13] (Finn J). There is also a risk that the subjective motivations of the plaintiff in discontinuing may be put forward as a basis for some other order. Except to the extent that such views may have been put before the defendant, for example as a basis for settlement, and be established as such on the evidence, subjective considerations of one party will generally be immaterial, so that the discretion will be exercised on the basis of the objective circumstances established on the evidence." 50 See also Brent v Levick [2009] NSWLEC 40 at [57] - [66] (Sheahan J).

51 The respondents submit that the proceedings concerning the PANS were doomed to failure and therefore they should have their costs. I will give consideration to the applicants' grounds of challenge to see whether they are arguable. But if they are arguable, it is generally inappropriate on a costs application to decide how the proceedings would have been determined if they had gone to trial: Lai Qin, quoted at [44] above.

52 The challenge to the validity of the PANS should be viewed against the respondents' primary contention that the Minister had power to compulsorily acquire the subject lands under s 9(2) of the EPA Act and that the PANS could be issued by the Minister's Department under s 11(1) of the Just Terms Act.

53 Under s 7 of the EPA Act the Minister has a number of functions including:

(c) to promote the co-ordination of the provision of public utility and community services and facilities within the State,

(d) to promote planning of the distribution of population and economic activity within the State,

(e) to investigate the social aspects of economic activity and population distribution in relation to the distribution of utility services and facilities, and"

(1) The corporation may, for the purposes of this Act or pursuant to any function conferred or imposed on the Minister or the Director-General by any environmental planning instrument, acquire land by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(2) Without limiting the generality of subsection (1), the corporation may acquire in any manner authorised by that subsection:

(a) any land to which an environmental planning instrument applies and which the Minister considers should be made available in the public interest for any purpose," 55 Section 11(1) of the Just Terms Act provides:

" 11 Notice of intention to acquire land by compulsory process

(1) An authority of the State may not acquire land by compulsory process unless the authority has given the owners of the land written notice of its intention to do so." 56 Section 14(2) of the Just Terms Act provides:

"(2) The proposed acquisition notice is taken to have been withdrawn if the authority of the State has not acquired the land or withdrawn the proposed acquisition notice:

(a) except as provided by paragraph (b) - within 120 days after it gave that notice, or

(b) within such longer period as that authority and the owner of the land have agreed to in writing." 57 The applicable environmental planning instrument referred to in s 9(2) of the EPA Act is said by the respondents to be State Environmental Planning Policy (Infrastructure) 2007, (Infrastructure SEPP) which applies (inter alia) to a rail corridor as defined in cl 78. The subject land was proposed to be acquired for the purpose of a rail corridor. Clause 78 defines "rail corridor" in paragraph (c) as follows:

"Land in respect of which the Minister has granted approval under Part 3A or (before its repeal) Division 4 of Part 5 of the Act for the carrying out of development (or for a concept plan for a project comprising or including development) for the purpose of a railway or rail infrastructure facilities." 58 The applicants' say that, had the matter gone to trial, they would have challenged the validity of the PANS on several grounds. The first ground is that the PANS were issued under the hand of an officer of the Department and not by the Minister and were therefore not authorised by s 11 of the Just Terms Act. The respondents submit that the words "authority of the State" in s 11 is sufficient to authorise the Department to issue the PANS. The second ground of challenge is that the Minister could not, as required by s 9(2) of the EPA Act, have acquired the lands "in any manner authorised by" subsection 9(1) of the EPA Act - that is, in accordance with the Just Terms Act - because there were no or insufficient funds to do so. The evidence of lack of funds is slight and consists of words said to have been uttered in a conversation by Mr David Barr, an officer of the Department, with a third party. Mr Barr did not recall this conversation. Whether or not he said it, his evidence was that there was a budget allocation (which continues) to acquire the subject lands. The third ground of challenge is based on hearsay evidence that Mr Barr did not reply to a third party's question in a telephone conversation in November 2008 whether it was a ploy to take their properties and swap the project and for the government to rezone the land and sell it off for the Town Centre. The applicants argue that this raises the issue whether the proposed acquisition was for a proper purpose. The final ground of challenge is that s 9(2)(a) of the EPA Act did not empower the Minister to acquire the land because it was not land "to which an environmental planning instrument applies". The applicants argue that because the Infrastructure SEPP (on which the respondents rely) did not apply because cl 6(2) says "A reference in this Policy to land within a land use zone that is equivalent to a named land use zone is a reference to land that, under an environmental planning instrument that is not made as provided by section 33A (2), is within a land use zone that (in the opinion of the relevant authority) is equivalent to that named land use zone". I do not understand this argument because it seems irrelevant to the respondents' reliance on the part of the definition of "rail corridor" in cl 78 of the Infrastructure SEPP quoted above at [57].

59 I consider that the first three grounds of challenge are arguable although the evidence for the second and third grounds tendered on the costs application is weak and would have had to be put into admissible form at a trial.

60 In my opinion, after taking into account the history of the matter, the following circumstances collectively amount to a sound reason for making no costs order to the commencement of the costs hearing: (a) the parties acted reasonably in commencing and defending the proceedings;

(b) the conduct of the respondents was such as to reasonably lead to the conclusion that litigation was necessary;

(c) there was a supervening event rendering the proceedings pointless when on 18 November 2008, the same day as the respondents' undertaking to the Court was given, a letter was sent by the Department to the applicants, without prior notice, advising that the Department would not be proceeding with the compulsory acquisition under the PANS. On the evidence, that was not because the respondents surrendered to the invalidity challenge but because of a budget decision not to proceed with the construction of Phase 2 the South West Rail Link.

(d) the applicants thereafter acted reasonably in bringing the matter back before the Court and not proceeding towards a final hearing. 61 I have taken into account the following matters.

62 The applicants submit that the proceedings were successful because they obtained an ex parte injunction on 31 October 2008, which was continued on 7 November 2008 and substituted by an undertaking on 18 November 2008. In my opinion, that does not mean that the proceedings were successful. It only suggests that there was a serious issue to be tried and that the balance of convenience at that time favoured the interlocutory injunctions. 63 Two matters weigh against the applicants. First, prayers 4 and 5 of the application challenged the validity of decisions other than decisions to issue the PANS. They seem to have been ignored in the evidence and scant regard was paid to them in the applicants' submissions. The best that can be said of them is that in that state of the evidence there was nothing positive to which the respondents had to respond. Secondly, the Trust was joined in error, although, when the error was exposed the applicants consented to the departure of the Trust from the proceedings. However, the discrete costs relevant to the Trust's joinder appear to be relatively small. On the other hand, a matter weighing against the respondents is that their conduct in November 2008, including conduct on the 18 November 2008 at Court , prior to the Department's letter of 18 November 2008, created the impression that a hearing was necessary and costs were thereby incurred. Yet on that very day the Department wrote directly to the applicants other than Mr Crowe indicating that the PANS would not be proceeded with.

64 I think that these competing considerations weighing against, respectively, the applicants and the respondents broadly offset each other and do not disturb my conclusion that the appropriate course is to make no costs order to the commencement of the hearing.

Orders 65 As noted earlier, the parties request that the costs of their respective notices of motion for costs from the commencement of the costs hearing before me on 16 April 2009 should be reserved. I also note that toward the conclusion of the costs hearing before me on 16 April 2009, the respondents made an open offer that each party pay their own costs of the proceedings until the commencement of the hearing on that day.

66 The orders of the Court are as follows: 1. The parties are to pay their own costs of the proceedings until the commencement of the hearing on 16 April 2009. 2. The costs of the hearing on 16 April 2009 are reserved. Any application for an order for such costs is to be made by arranging with the Registrar within seven days for the matter to be re-listed before me, otherwise there will be no order as to such costs. 3. The exhibits may be returned.

01/05/2009 - omission of case citation on coversheet - Paragraph(s) cover

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.

(2006) 143 LGERA 441

At a glance

Court

Decision date

Before

Source

Judgment (117 paragraphs)

Parties

Cases Cited (13)

Cited By (19)