Ralph Lauren 57 Pty Limited v Byron Shire Council

Court of Appeal (NSW)|2013-10-21|Before: Beazley P, Ward JA, Preston CJ, Sheahan J, Leeming JA

LGERA 441 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 Ku-ring-gai Council v Minister for Planning (No 2) [2008] NSWLEC 276 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Minogue v Williams [2000] FCA 125 Newcastle Wallsend Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129; 153 IR 386 One.Tel v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 Patrick v Howorth [2002] NSWCA 285 Portelli v Tabriska Pty Ltd [2009] NSWCA 17 Porter v Gordian Runoff [2004] NSWCA 171 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Rinehart v Welker [2011] NSWCA 403 Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143 True Conservation Association Inc v Minister Administering the Threatened Species Conservation Act 1995 [2008] NSWLEC 221 Wentworth v Wentworth (1994) 35 NSWLR 726 Category: Principal judgment Parties: CA 2013/13396 Ralph Lauren 57 Pty Ltd (First Applicant) PJ George Investments Pty Ltd (Second Applicant) Ralph Lauren Pty Ltd (Third Applicant) Robert Watson (Fourth Applicant) Immer (No 196) Pty Ltd (Fifth Applicant) John Vaughan (Sixth Applicant) Anne Vaughan (Seventh Applicant) Stewartville Pty Limited (Eighth Applicant) John Anthony Callanan (Ninth Applicant) Simon Clowes (Tenth Applicant) Lisa Clowes (Eleventh Applicant) Byron Shire Council (First Respondent) Minister for the Environment (Second Respondent) CA 2013/13401 Ralph Lauren 57 Pty Ltd (First Applicant) PJ George Investments Pty Ltd (Second Applicant) Ralph Lauren Pty Ltd (Third Applicant) Robert Watson (Fourth Applicant) Immer (No 196) Pty Ltd (Fifth Applicant) John Vaughan (Sixth Applicant) Anne Vaughan (Seventh Applicant) Stewartville Pty Limited (Eighth Applicant) John Anthony Callanan (Ninth Applicant) Simon Clowes (Tenth Applicant) Lisa Clowes (Eleventh Applicant) Jürgen Greiner (Twelfth Applicant) Ingrid Greiner (Thirteenth Applicant) Paecal Pty Ltd (Fourteenth Applicant) Byron Shire Council (Respondent) Representation: Mr N A Cotman SC with Mr A Bouris (Applicants) Mr S R Donaldson SC with Mr I J Hemmings SC (First Respondent) King & Wood Mallesons (Applicants) DLA Piper Australia (Respondent) Office of Environment and Heritage (Second Respondent) File Number(s): CA 2013/13396 and 2013/13401 Decision under appeal Citation: [2012] NSWLEC 274 Date of Decision: 2012-12-20 00:00:00 Before: Sheahan J File Number(s): 40068 and 40167 of 2011

Application for Review Court/Tribunal: Court of Appeal Before: Leeming JA Date of Decision: 9 September 2013 Court File Numbers: CA 2013/13396 and 2013/13401

[This headnote is not to be read as part of the judgment] The applicants sought leave to appeal from the decision of the Land and Environment Court (Sheahan J) ordering the parties to pay their own costs of discontinued proceedings and dismissing the applicants' notice of motion seeking leave to reopen their case to tender documents. The applicants, by way of notices of motion in the Court of Appeal, sought access to the same documents of the Council that had been the subject of the application to reopen their case in the Court below. Leeming JA dismissed the notices of motion and ordered the applicants to pay the Council's costs of the notices of motion. The applicants applied for a review of the orders of Leeming JA: Supreme Court Act 1970, s 46(4). By further notice of motion, they applied for the Court of Appeal to receive further evidence: Supreme Court Act 1970, s 75A(7). Four issues arose for determination by the Court of Appeal: (1) Whether the primary judge erred in ordering the parties to pay their own costs; (2) Whether the primary judge erred in refusing to grant the applicants leave to reopen; (3) Whether the single appeal judge erred in finding that the Council had not waived privilege by serving written submissions; and (4) Whether there were special grounds justifying receiving certain documents into evidence. The Court refused to grant leave to appeal from the decision of Sheahan J, dismissed the application to review the decision of Leeming JA and the notice of motion to receive further evidence, and ordered the applicants to pay the respondents' costs of the proceedings in the Court of Appeal. Held per Preston CJ of LEC (Beazley P and Ward JA agreeing): In respect of (1): The primary judge did not err in ordering the parties to pay their own costs: [89]. The Council's resolution of 14 April 2011 did not deliver the very relief which the applicants sought in either of their proceedings in the court below: [93]. Even if the applicants achieved the relief they sought in the proceedings, this did not by itself and without more justify the awarding of costs in favour of the discontinuing plaintiff: [108]. There usually needs to be in addition some unreasonableness in the conduct of the defendant: [108]. The applicants failed to prove that the Council's conduct involved unreasonableness: [110]. Applied: Bitannia v Parkline Constructions Pty Ltd [2009] NSWCA 32; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 662. Considered: Jones v Dunkel (1959) 101 CLR 298. In respect of (2): The primary judge did not err in refusing leave to the applicants to reopen their case: [137]. The applicants' assertion that the primary judge was wrong and that the decision denied them procedural fairness was simply to dispute the outcome: [138]. The applicants did not demonstrate that the primary judge's decision involved an error of law, or caused substantial injustice: [138]. In respect of (3): Leeming JA, sitting as a single judge of appeal, did not err in dismissing the applicants' notices of motion: [159]. There was no error in his Honour's finding that privilege had not been waived: [160]. The fact that the single appeal judge dealt with the applicants' argument on a paragraph by paragraph basis did not reveal any error: [161]. The single appeal judge's statements concerning whether waiver can be effected merely by service of submissions did not reveal error: [164]. In respect of (4): The applicants failed to demonstrate special grounds justifying receiving the documents into evidence: [177]. The two letters were available at the time of the hearing of the applicants' costs application in the court below but the applicants did not tender them at that time, or on their application to reopen. The applicants failed to establish that, had they been tendered at the costs hearing, the primary judge's decision on costs would have been any different: [177]. Applied: Akins v National Australia Bank (1994) 34 NSWLR 155.

Judgment 1BEAZLEY P: I agree with Preston CJ of LEC. 2WARD JA: I agree with Preston CJ of LEC. 3PRESTON CJ of LEC:

Nature of applications and outcome The applicants discontinued judicial review proceedings in the Land and Environment Court. They sought an order that the respondents pay the applicants' costs of the discontinued proceedings. The Land and Environment Court (Sheahan J) instead ordered the parties to pay their own costs of the proceedings. The applicants seek leave to appeal that decision. 4After the hearing of the application for costs in the Court below concluded and the primary judge had reserved judgment, the applicants sought, by notice of motion, leave to reopen their case to tender certain documents of one of the respondents, Byron Shire Council, that, although available at the time of the costs hearing, had not been tendered and to make further submissions. The primary judge declined to give leave to reopen, dismissed the applicants' notice of motion and ordered the applicants to pay the respondents' costs of the motion on a party/party basis. The applicants seek leave to appeal this decision of the primary judge as well. 5After the applications for leave to appeal these two decisions had been filed and the respondents had filed their response opposing the grant of leave to appeal, the applicants sought, by notice of motion filed in the two applications for leave to appeal, access to the same documents of the Council that had been the subject of the application in the Court below to reopen. The Council opposed access being granted to these documents on the basis that the documents were privileged. The applicants responded that the Council had waived privilege by making certain statements in its written submissions in response opposing the grant of leave to appeal. These notices of motion were heard by a single judge of the Court of Appeal (Leeming JA). The single appeal judge assumed that the forensic purpose for which the applicants sought access to the documents was to tender them, by way of further evidence, on the appeal under s 75A of the Supreme Court Act 1970 in support of the proposition that appellable error was disclosed. The single appeal judge held that the Council had not waived privilege by any of the statements it made in its submissions. Accordingly, the single appeal judge dismissed the applicants' notices of motion and ordered the applicants to pay the Council's costs of the notices of motion. The applicants seek, by notice of motion, an order of the Court of Appeal discharging the single appeal judge's order dismissing the notices of motion and instead an order granting the applicants access to the Council's documents. 6After the single appeal judge's decision, the applicants applied, by further notices of motion, for the appellate court to receive evidence, pursuant to s 75A(7) of the Supreme Court Act, of certain documents. 7The hearing of the leave applications and the substantive appeals, the application to discharge the single appeal judge's orders and decision, and the application to receive evidence on the appeal, were heard concurrently. I would refuse leave to appeal against the two decisions of the court below regarding costs and reopening, dismiss the application to discharge the single appeal judge's decision, and dismiss the application to receive evidence.

Structure of judgment 8In the first section, I summarise the principles applicable to the decisions of the primary judge and single judge of appeal and to appeal or review of them. I firstly summarise the principles governing the applications for leave to appeal against the primary judge's decisions on costs and reopening, and the application to discharge the decision and order of the single judge of appeal. Because resolution of the applicants' argument that the primary judge's decision on costs was erroneous depends on a proper understanding of the principles governing the making of an order for costs where a plaintiff discontinues proceedings, I discuss these principles. 9In the second section, I deal with the primary judge's decision on costs and reopening. I summarise, firstly, the primary judge's decision, secondly, the applicants' argument as to why the primary judge erred, and thirdly, the respondent's argument as to why the primary judge did not err. I then explain my reasons for concluding that the applicants have not established that the primary judge erred in making either the decision that each party pay their own costs of the proceedings in the court below or the decision refusing leave to the applicants to reopen, and hence that leave to appeal these decisions should not be granted. 10In the third section, I deal with the decision of the single judge of appeal. I will again summarise the single judge of appeal's decision and the parties' respective arguments that he erred or did not err. Finally, I explain my reasons for concluding that the applicants have not discharged the burden of establishing that the decision should be set aside. 11In the fourth section, I deal with the applicants' application that this Court receive into evidence certain documents under s 75A(7) of the Supreme Court Act. 12In the final section, I express my conclusion and propose the orders that should be made.

Principles governing the applications for leave to appeal and to discharge orders 13The primary judge's decision refusing leave to reopen was an interlocutory order relating to a matter of practice and procedure. Appeals from decisions relating to matters of practice and procedure attract the same general principles as those that apply to any appeal against the exercise of a judicial discretion. Ordinarily, in order to overturn such a decision on appeal, the applicant should demonstrate that the decision-maker made an error of legal principle, made a material error of fact, took into account some irrelevant matter, failed to take into account or gave insufficient weight to some relevant matter, or arrived at a decision so unreasonable or unjust as to suggest that one of these categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] and House v The King (1936) 55 CLR 499 at 504-505. 14As an interlocutory decision and order, leave of the Court of Appeal is required: s 101(2)(e) of the Supreme Court Act. Leave to appeal such an interlocutory order involving a matter of practice and procedure ordinarily should not be granted unless the decision involves such a material error of fact or law and substantial injustice would result if leave were to be refused, supposing the decision be erroneous: Minogue v Williams [2000] FCA 125 at [19]. 15The decision of the court below as to costs also requires leave to appeal: s 101(2)(c) of the Supreme Court Act. The awarding or non-awarding of costs was a matter for the discretion of the court below. The two proceedings were in Class 4 of the Land and Environment Court's jurisdiction. The Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005 ('UCPR') apply to proceedings in Class 4. Section 98 of the Civil Procedure Act provides that, subject to rules of court, costs are in the discretion of the court: s 98(1)(a). Rule 42.19 of the UCPR provides that, if proceedings are discontinued by a plaintiff in the manner provided for in r 12.1, unless the Court orders otherwise, 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 (r 42.19(2)). 16The court's power to "order otherwise" than to make the default order that the discontinuing plaintiff pay the defendant's costs, preserves the court's discretion as to the appropriate costs outcome. The fact of discontinuance does not fetter the discretion: Fordyce v Fordham [2006] NSWCA 274; (2006) 67 NSWLR 497 at [78]; Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 at [53]. 17As I have noted earlier, the exercise of the power to order otherwise than the default costs order in r 42.19(2) is discretionary. Hence, leave to appeal from the decision of the court below that each party pay their own costs is required. The leave requirement is an additional restriction to the usual restrictions that apply to appeals against discretionary decisions involving practice and procedure. Leave to appeal will not usually be granted where the decision involves the application of well settled principles applicable to the costs discretion. 18The application to discharge the orders and decision of Leeming JA involves the application of similar principles. An application under s 46(4) of the Supreme Court Act to discharge or vary a single judge of appeal's orders and decision is neither an appeal (s 19(2) of the Supreme Court Act, rr 51.2 and 51.58 of the UCPR, and Collier v Lancer [2013] NSWCA 185 at [19]) nor a new hearing of the matter determined by the single appeal judge (Jaffari v Grabowski [2013] NSWCA 114 at [26]). A sufficient ground must be shown upon which the order should be discharged, otherwise the order will stand: Porter v Gordian Runoff [2004] NSWCA 171 at [4]; Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 at [14]. 19Where the decision is discretionary, the approach to an application to discharge or vary a single judge of appeal's orders is akin to that applied to review of discretionary decisions expressed in House v The King and In re the will of Gilbert (1946) 46 SR (NSW) 318; 63 WN (NSW) 176: see Wentworth v Wentworth (1994) 35 NSWLR 726 at 731, 733, 737; Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) NSWCA 136; (2004) 60 NSWLR 143 at [4]-[6]; Rinehart v Welker [2011] NSWCA 403 at [70]. There must be some error of law, a material error of fact, a failure to take into account some material consideration or the taking into account of an irrelevant consideration or the decision is so unreasonable as to suggest that one of these types of errors must have been committed although it does not appear on the face of the reasoning: Patrick v Howorth [2002] NSWCA 285 at [10]. The person seeking a s 46(4) review bears a heavy burden to discharge in order to have a single judge of appeal's decision and orders set aside: Rinehart v Welker at [48]; Jaffari v Grabowski at [27]; Collier v Lancer at [20].

Principles governing costs orders where proceedings discontinued 20Rule 42.19(2) provides for a default order that a discontinuing plaintiff is to pay the defendant's costs, but gives the court power to order otherwise than the default order. 21The court can only order otherwise if it makes a discretionary decision to depart from the default costs order provided for in r 42.19(2). This means that 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 v Angreb Pty Ltd [2006] NSWCA 335 at [65]. It also means that there must be some positive ground or good reason for departing from the ordinary course: Australiawide Airlines Ltd v Aspirion Pty Ltd at [54]; Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 at [54]. As Basten JA summarised in Bitannia Pty Ltd v Parkline Constructions Pty Ltd at [70]: ... the discontinuing plaintiff must be the moving party on an application for an alternative costs order. If it is necessary to establish a factual basis for such an order, the plaintiff will bear the onus of proving the relevant facts. Similarly, if it necessary to draw particular inferences from primary facts, the plaintiff will also bear that burden. Finally, the plaintiff will bear the burden of persuading the court that some other order is appropriate. 22The circumstances on which a discontinuing plaintiff may rely to persuade the court that an alternative costs order is appropriate are varied and those discussed in the authorities do not exhaust the circumstances in which the discretion might be exercised. However, the authorities reveal that circumstances where a court has made an alternative costs order have a common thread related to the reasonableness or unreasonableness of the conduct of the parties. 23Where the discontinuing plaintiff is seeking an order that the defendant pay the plaintiff's costs of the proceedings, the circumstances relied on tend to be that the defendant has acted so unreasonably that it should pay the discontinuing plaintiff's costs. The mere fact that the discontinuing plaintiff may have achieved some practical success, such as achieving the result it sought in the proceedings, does not by itself and without some extra circumstance, ordinarily justify the awarding of costs in favour of the discontinuing plaintiff. The extra circumstance needed is frequently found in the unreasonableness of the conduct of the defendant: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625; One.Tel v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 at [5]. The unreasonableness in the conduct of the defendant may be prior to the commencement of the proceedings, where such conduct may have precipitated the litigation, or in the defence of the proceedings. 24In administrative law proceedings, for example, if the defendant acted unreasonably in exercising or refusing to exercise a statutory power and the plaintiff had no reasonable alternative but to commence litigation to compel the proper exercise of the power, but after commencement of the proceedings the defendant exercises the power in the manner sought by the plaintiff in the proceedings, the court may be able to conclude that the defendant acted so unreasonably that the plaintiff should obtain its costs of the proceedings: Lai Qin at 624-625 and Australian Securities Commission v Aust-Home Investments Ltd at 201. 25In Lai Qin, the unsuccessful applicant for a protection visa had brought proceedings for prerogative orders directed to the Minister for Immigration and Ethnic Affairs. Subsequently, the Minister reviewed the earlier decision to refuse a protection visa and instead decided to grant the applicant a protection visa. Further prosecution of the proceedings was thereby rendered unnecessary. The applicant sought an order that the Minister pay her costs of the proceedings. The basis for the application was not simply that, by the Minister undertaking a review and granting the protection visa, the applicant had achieved practical success, but rather that the Minister acted unreasonably in not informing the applicant prior to her commencing the proceedings that he intended to review her application for a protection visa. McHugh J found that the Minister's conduct was not so unreasonable and did not justify making a costs order against the Minister (at 628). 26Unreasonableness of conduct can also be found in a defendant continuing to defend litigation until it then surrenders to the plaintiff by consenting to the court making orders, or giving an undertaking to the court, in substantially the same terms and effect as sought by the plaintiff in the proceedings: see Edwards Madigan Torhillo Briggs Pty Ltd v Gloria Stack [2003] NSWCA 302 at [5]; Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 at [56], [60]-[71], [80]; Ku-ring-gai Council v Minister for Planning (No 2) [2008] NSWLEC 276 at [25], [26]; and Hall v Ku-ring-gai Council [2009] NSWSC 370 at [39]-[48]. This is not a settlement of the litigation in the ordinary sense, but rather a surrender to the plaintiff. In this circumstance, although there has not been a trial on the merits, the court may feel confident that the discontinuing party would have almost certainly have succeeded if the matter had been fully tried: Lai Qin at 625. The defendant's unreasonableness in defending litigation that it would almost inevitably have lost up to the point of surrender, causing the plaintiff unnecessarily and unreasonably to have incurred costs to that point, may provide the justification for a costs order in favour of the discontinuing plaintiff. 27This was the circumstance justifying the costs order in favour of the applicants in One.Tel. The applicants, by their proceeding, sought to challenge the validity of certain statutory notices directed to the applicants in order to have them set aside. The respondent, after initially defending the notices, encountered an evidentiary difficulty and consented to court orders setting aside the notices. Burchett J held that this meant that the applicant succeeded in the litigation. The result the applicant sought was achieved without a hearing and not by a settlement in the ordinary sense or by extra curial means. A costs order was made in the applicants' favour: at [7]. 28Circumstances where there may be no unreasonable conduct of the parties include where the plaintiff discontinues because it has achieved the relief sought in the proceedings by means of settlement of the litigation with the mutual consent of the parties or by extra curial means, or because of the happening of a supervening event which so removes or modifies the subject of the dispute that no issue remains between the parties except that of costs: Lai Qin at 624; and One.Tel at [6]. 29In the case of a settlement, the court ordinarily will not look behind the settlement to the reasons or motivation of the parties to settle, and hence will not evaluate the reasonableness of the parties in settling: see Bitannia Pty Ltd v Parkline Constructions at [81]. 30An extra curial or supervening event may or may not be related to any conduct or action of the defendant. If the extra curial or supervening event is unrelated to the defendant's conduct, no question regarding the reasonableness of the defendant's conduct can arise and the appropriate order may be that each party bear its own costs. The passage of legislation rendering the plaintiff's proceeding futile or wholly removing the plaintiff's cause of action is an example of a supervening event unrelated to any conduct of the defendant: see Newcastle Wallsend Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129; 153 IR 386 (where Tobias JA considered that discontinuance flowed from the supervening event of amending legislation and each party should bear its own costs whereas Basten JA and Mason P were of the view that discontinuance flowed from a different event of an earlier Court of Appeal decision which indicated that the applicant would be unsuccessful if it pursued its claim) and True Conservation Association Inc v Minister Administering the Threatened Species Conservation Act 1995 [2008] NSWLEC 221 at [17]. 31If, however, the defendant's action constituted or caused the supervening event, the reasonableness or unreasonableness of the defendant's actions may need to be assessed. It is not sufficient by itself that the defendant's action is or brought about the supervening event; there ordinarily needs to be something unreasonable in the defendant taking that action. In an administrative law proceeding, for example, a defendant public authority might re-exercise a statutory power, such as to grant a fresh approval to a fresh application, rendering futile the challenge in the proceedings to the validity of an earlier approval. Notwithstanding that the defendant's action caused the proceeding to become futile, unless there was some unreasonableness in the defendant so acting, the proper exercise of the costs discretion may still be to make no order as to the costs of the proceeding. Examples of this type of case are given in Kiama Council v Grant at [72]-[77]. The decisions in Ku-ring-gai Council v Minister for Planning (No 2) and Hall v Ku-ring-gai Council are, however, different in that the courts did not find any unreasonableness in the conduct of the local council in repealing the order or rescinding the resolution that were the subject of challenge, yet still made a costs order against the defendant. 32A contrasting example is that given by McHugh JA in Lai Qin where a defendant acts unreasonably in exercising or refusing to exercise the statutory power, precipitating a plaintiff to bring the proceedings, and then the defendant exercises the power in the manner sought by the plaintiff. The unreasonableness of the defendant's conduct, which constitutes the extra curial or supervening event, justifies the making of a costs order against the defendant: Lai Qin at 624-625. 33If there is no unreasonableness in the conduct of the defendant then, notwithstanding that the discontinuing plaintiff might have achieved some practical success by settlement or extra curial means, the proper exercise of the costs discretion will usually be to make no order as to costs. As McHugh J said in Lai Qin at 625: 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 became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the costs of the proceedings. 34One circumstance that will generally not be relevant in deciding whether an alternative costs order should be made is the reason for the plaintiff's discontinuance. As Basten JA said in Bitannia Pty Ltd v Parkline Constructions Pty Ltd at [81]: 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.

The primary judge's reasons 35The primary judge delivered written reasons for judgment on 20 December 2012 dismissing the application to reopen and ordering each party to pay their own costs. Although the judgment was long and chronicles in detail the events, the critical facts and steps in the reasoning process can be shortly stated. 36The applicant commenced, on 28 January 2011, the first proceeding seeking a declaration that the draft Byron Shire Coastal Zone Management Plan ('the draft CZMP'), adopted by resolution of the Council on 27 May 2010 and forwarded to the Minister for Climate Change and the Environment ('the Minister') on 1 September 2010 for approval under s 55G of the Coastal Protection Act 1979, was "void, invalid, unlawful, and of no effect" (at [56]). On 22 March 2011, the applicants pleaded, by way of points of claim, their case as to why the draft CZMP was invalid (at [69]). 37On 1 March 2011, the applicants commenced a second proceeding seeking a declaration that the draft CZMP as directed by the Minister to be amended by the Council, in the direction dated 22 February 2011 issued by the Minister to the Council under s 55G(4)(b) of the Coastal Protection Act, "is or would be void, invalid, unlawful and of no effect" and a declaration that the direction itself was "void, invalid, unlawful, and of no effect" (at [62]). The applicants pleaded their case as to the invalidity of this draft plan and the Minister's direction in points of claim filed on 4 April 2011 (at [69]). 38On 14 April 2011, the Council resolved at its meeting to withdraw the draft CZMP and to prepare a new one under the new statutory guidelines and the amended provisions of the coastal legislation (at [78]). This was the action which the applicants argued amounted to a surrender by the Council to the applicants and resulted in the applicants achieving practical success. 39The applicants' argument for reopening their case focussed upon the legal advice considered at the Council meeting on 14 April 2007 and the transcript of the discussion of the councillors in the confidential session of this meeting. The applicants sought to have the Court inquire into the Council's reasoning processes which brought about the 14 April decision (at [223]). The primary judge summarised the course of events and the documents considered by the Council at its meeting on 14 April 2011 (at [75]-[77]). 40On 27 April 2011, the Council suggested to the applicants that they discontinue their action against the Council and agree that each party pay its own costs (at [80]). 41On 28 April 2011, the Council notified the Minister of its resolution of 14 April 2011(at [81]). On 26 May 2011, the Minister informed the Council that, in light of the 14 April resolution, she did not intend to make the CZMP earlier submitted by the Council (at [82]). 42On 17 June 2011, the Land and Environment Court granted leave to the applicants to discontinue both of their proceedings, reserved the question of costs, gave directions for a cost hearing, and fixed the costs hearing for 31 August 2011 (at [83]). 43By the time the applicants discontinued their two proceedings, no points of defence had been filed in either proceeding (at [84]). 44The primary judge described the events leading up to the costs hearing on 31 August 2011 (at [86]-[92]), at the costs hearing (at [94]-[111]) and afterwards (at [112]-[194]). These events were relevant not only to the determination of the costs question but also to the applicants' application to reopen their case. 45On 3 February 2012, the parties argued the applicants' notice of motion seeking leave to reopen (at 218]). The primary judge summarised the arguments of the applicants (at [223]-[228], [241]-[243]) and the Council (at [229]-[240]). 46The primary judge reminded himself of the principles governing the reopening of matters (at [244]). He described the difficulty the applicants faced in attempting to reopen the costs argument so as to inquire into the Council's recommendation and reasoning processes which brought about the 14 April decision (at [223]). The primary judge found that the subjective intention of the Council was irrelevant to the costs question (at [248]). 47The primary judge stated that he preferred the submissions of the Council (which he had earlier summarised) and found that the evidence (which he had also earlier summarised) supported the Council's case (at [249]). The primary judge did not accept the submission of the applicants that counsel for the Council had misled the Court in any way at any stage of the proceedings, thereby justifying the applicants being permitted to reopen to address any misleading statements (at [250]). The primary judge concluded: The court finds absolutely no basis upon which it should exercise its discretion to reopen the costs matter, and the interests of justice are best served by refusing to reopen the matter. The applicants' NOM has no merit, and should be dismissed with costs (at [251]). 48In relation to the costs question, the primary judge summarised the parties' arguments on costs (at [195]-[205] for the applicants; [206]-[208] for the Minister; and [209]-[217] for the Council). The arguments identified and summarised the relevant authorities, and the principles deriving therefrom, dealing with making costs orders in the event of discontinuance by a plaintiff (at [201]-[202], [212], [213]).The primary judge had earlier identified the relevant rule, r 42.19 (in [8]). 49The primary judge addressed the applicants' argument that there had been an effective surrender or capitulation by the Council and that the applicants had achieved practical success in the two proceedings. The primary judge stated: 219 In these two proceedings, commenced respectively on 28 January and 1 March 2011, the applicants have always had the difficulty that they were attempting to attack the validity of a draft policy document. 220 Council has never reversed its decision of 27 May 2010, to place a draft CZMP before the Minister, and no finding of invalidity of any draft has ever been made or conceded. 221 The pleadings in these matters were not completed - indeed, Council had not yet requested particulars of the POC [Points of Claim] - when, on 14 April 2011, Council resolved to withdraw its original draft and prepare a new one, in accordance with the revised statutory scheme. Such a course was entirely open to the Council, but that decision removed from the scene the very document upon which these proceedings rested. 222 The costs argument, which was conducted and, I thought, concluded, on 31 August in the context of the proceedings, was based on (1) the applicants' claims that the respondents 'surrendered', (2) Council's characterisation of the change in regime as a 'supervening event', and (3) the Minister's characterisation of the Council's decision of 14 April as a 'supervening event'. There was no effective surrender or capitulation by the Council or the Minister, nor any 'practical success' for the applicants. The draft document they opposed was withdrawn, but any new draft may well give rise to similar allegations of invalidity. 50In the section of the judgment entitled "consideration", where the primary judge dealt with both the questions of reopening and costs, the primary judge reminded himself of the principles to be applied in allocating the costs burden where proceedings are discontinued (at [245]). As earlier noted, the primary judge found that the subjective intention of the Council was irrelevant to the costs question (at [248]). The primary judge's statement of preference for the submissions of the Council (in [249]) also applied to the question of costs. These submissions on costs had earlier been summarised. The primary judge's finding that the evidence supported the Council's case also applied to the question of costs. The primary judge had earlier summarised, in great detail, the evidence relevant to the discontinuance of the proceedings and the costs question. 51The primary judge found that it was appropriate to order otherwise then the default costs order in r 42.19: I am satisfied that the applicants have certainly overcome the presumptive rule requiring them to pay the costs of the respondents. (at [253]). 52However, the primary judge did note that there was some evidence to support making the default costs order: The respondents chose not to call on that rule, but there is some evidence upon which they could have easily have relied to argue for some of their costs, given that the applicants commenced three separate proceedings in the same premises. (at [253]). 53The primary judge further found that he was not satisfied that the discontinuing applicants should have their costs paid by the respondents: However, applying the established principles, I find that the applicants have made no real case for them to recover any of their costs from the respondents. (at [254]). 54The "established principles" to which the primary judge referred were the principles discussed in the authorities that he had earlier identified and summarised as to the award of costs where proceedings have been discontinued. 55The primary judge concluded: In all those circumstances, there should, and will, be no orders for costs in respect of the two proceedings in this court and their discontinuance. (at [255]).

The applicants' argument that the primary judge erred 56The applicants submitted that their case on costs in the court below was simply that the Council, by resolving on 14 April 2011 to withdraw the draft CZMP and begin the process again, had effectively surrendered or capitulated to the applicants by delivering the outcome the applicants had sought as relief. The applicants submitted that their case did not depend on proving the reasons or motives of the Council for that surrender. It was sufficient that the surrender occurred. 57The applicants submitted that, in these circumstances, the authorities established a prima facie position that the applicants should have their costs paid by the respondent. It was submitted that the respondents bore the onus of displacing this prima facie position. If the Council wished to contend that there was some explanation for the withdrawal of the draft CZMP that was inconsistent with the Council paying the applicants' costs of the proceedings, it bore the onus of proving those facts. 58The applicants submitted that the Council did in fact seek to raise the Council's motivation in resolving to withdraw the draft CZMP in the Council's case. The applicants submitted that the Council's case had two elements. Firstly, the Council's decision to withdraw the draft CZMP had "nothing to do" with the applicants' proceedings. Secondly, the Council undertook an "evolutionary process" prior to the meeting of 14 April 2011, leading to the withdrawal of the draft CZMP by resolution at that meeting apparently compelled by some impulse of evolution that had been longstanding. The applicants submitted that this case was not supported by any evidence from the Council or any document properly construed. The applicant submitted that the primary judge erred in the exercise of his costs discretion by accepting the Council's submissions uncritically and without reasoning - in effect, submissions were substituted for evidence. 59The applicants elaborated on this argument in five ways. (a) The burden did not lie with the applicants 60The applicants submitted that the primary judge appeared to have placed the burden on the applicants to prove the Council's reasons or motive in withdrawing the draft CZMP and to negative the case of a supervening event (referring to [254] of the judgment). It was submitted that this was a matter for the Council to properly raise in its case before the applicants could have any obligation to rebut it. The Council had adopted an affirmative case as to its reasons for withdrawing the CZMP. It was incumbent upon the Council to prove that assertion by way of evidence, not assertion. (b) Failure to have regard to material evidence 61The applicant submitted that the primary judge made no reference to, or analysis of, the transcript of the open session of the Council meeting on 14 April 2011. That transcript, the applicants submitted, was entirely inconsistent with the Council's submission that the withdrawal of the draft CZMP had nothing to do with the applicants' proceedings or at least required substantial explanation in order to show how it could support the idea that there had been a "supervening event" in the form of amendments to the Coastal Protection Act, and that the Council's decision was merely part of an "evolutionary process", or even if there was such a process. 62The applicants submitted that the primary judge erred in failing to find and have regard to the transcript which showed that it was the legal advice from the Council's insurer's solicitors that was the single event which caused the Council's change of position and led to the decision to withdraw the CZMP. 63The applicants relied on that transcript as a business record to show that the Council had received its insurer's legal advice, that the Council had that legal advice at its meeting, that it considered that legal advice, and that following that consideration, the Council resolved to change its previous position and to withdraw the draft CZMP. The applicants submitted that the primary judge failed to consider the contents of the transcript. The applicants contended that the Council had submitted in the court below that the primary judge ought not examine the content of the transcript at all. As a result, the primary judge was led into significant error in not appreciating or finding that the single cause of the decision to withdraw the CZMP was the legal advice and made contrary findings (as for example in the judgment at [210]-[213] and [230]). 64The applicants also submitted that the primary judge failed to have regard to the minutes and agenda papers for the council meetings in February and March 2011, which showed that the Council had been progressing quickly the draft CZMP at an ordinary meeting of the Council on 24 February 2011 and an extraordinary meeting called expressly for that purpose on 3 March 2011, under the old statutory regime, as it was entitled to by virtue of grandfathering provisions. No issue of withdrawal was recorded in the minutes of those meetings. This showed that the Council changed position at the meeting on 14 April 2011. (c) The Council's submissions were contrary to evidence 65The applicants submitted that the primary judge erred in accepting the Council's submissions that the Council's decision to withdraw the draft CZMP had "nothing to do with the current proceedings" and was merely part of an evolutionary process. That conclusion was not open on the evidence and, more particularly, was contradicted by the documentary evidence properly read (including the transcript of the 14 April meeting). The transitional provisions meant that the legislative amendments to the Coastal Protection Act did not affect the Council's preparation of the draft CZMP. The evidence also showed that the Council was aware of this and was proceeding on that basis at its February and March 2011 meetings. (d) Document misstated to the court below 66The applicants submitted that the counsel for the Council made a new submission at the costs hearing on 31 August 2011 in the court below as to the contents of a document (being a draft version of an agenda for the Council meeting of 14 April 2011), which was erroneous. The applicants submitted that, although the applicants pointed out the errors in their oral and written submissions in the court below, the Council did not withdraw or correct its submissions. The applicants submitted that the erroneous submissions were accepted the primary judge and infected his characterisation of what occurred. (e) Council's submissions not supported by sworn evidence 67The applicants submitted that the Council chose not to adduce evidence from councillors who attended the 14 April 2011 meeting. The decision of the Council not to call such evidence should have led the primary judge more readily to have drawn an inference that such evidence, had it been adduced, would not have assisted the Council (Jones v Dunkel (1959) 101 CLR 298) or simply to reject a case that invited inferences as to what councillors did in the absence of evidence from them. 68The applicants also submitted that the primary judge erred in concluding that the Council had not capitulated or that the applicants had not achieved practical success on the basis that "any new draft may well give rise to similar allegations of invalidity" (at [222] of the judgment). 69It was submitted that the contents of any future coastal zone management plan were a matter of speculation and not relevant to the costs position in relation to the plan challenged for invalidity that was withdrawn on legal advice. 70In relation to the primary judge's decision on reopening, the applicants submitted that, in the circumstances the applicants allege occurred, the primary judge should have granted the applicants leave to reopen their case due to the change in the Council's case at the end of the hearing on 31 August 2011 and the misleading nature of the Council's submissions. The applicants submitted they were denied the opportunity to correct the manifest errors and test the assertions of the Council of an "evolutionary process" against the legal advices and the transcript of the confidential session of the Council on 14 April 2011. As a result of that denial, the applicants submitted that they were not afforded procedural fairness. 71The applicants submitted that if they were correct that a new argument had been made by the Council on the basis of a document previously withheld on the basis it was irrelevant, and the contents of that document were misstated to the Court, leave to reopen should have been given. The primary judge gave no reason why leave was not granted to reopen. The judgment contained manifest errors reflecting the erroneous submissions advanced by the Council which were not corrected.

The Council's argument that the primary judge did not err 72In relation to the primary judge's decision on costs, the Council submitted that the applicants' argument depended on a misapprehension of who bore the onus of demonstrating that there should be an alternative costs order and establishing the factual basis for such an order. The applicants erroneously argued that the Council bore the onus of proving that its resolution to withdraw the draft CZMP was not a surrender, or that it was a supervening event, and of establishing the reasons or motive for Council's resolution to withdraw the draft CZMP. The applicants' alleged errors of the primary judge were founded on this erroneous argument. The Council elaborated on this argument in seven ways. (a) The applicants misapprehended the authorities relevant to the exercise of the Court's discretion to order costs following discontinuance of proceedings 73The Council submitted that, contrary to the applicants' argument, the authorities do not establish a prima facie position that, if a party discontinues proceedings because it has achieved the relief sought in the proceedings, either by settlement or by extra curial means, the discontinuing party should have its costs paid by the other party, unless the other party displaces that prima facie position by evidence. The Council referred to the discussion of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin at 624 (quoted above). 74The Council further submitted that, contrary to the applicants' argument, the fact that the proceedings became otiose by reason of the actions of the Council does not establish that there has been a "surrender" rather than a "supervening event" within the meaning of the distinction drawn in One.Tel Limited v Deputy Commissioner for Taxation. The distinction drawn by Burchett J was 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" (at [6]). (b) The applicants bore the onus of proving that there was a surrender 75The Council submitted that the applicants bore the onus of demonstrating that there existed a proper basis for the exercise of the discretion to make a costs order in their favour. So far as the applicants' case was that there had been a surrender, it fell to the applicants to discharge the onus of proving that there was a surrender in the relevant sense. The Council relied on the statement of Basten JA in Bitannia Pty Ltd v Parkline Constructions Pty Ltd at [70] (quoted above) that the discontinuing plaintiff bore the onus. 76The Council submitted that the decision in Hall v Ku-ring-gai Council, relied on by the applicants, was plainly distinguishable. That decision was based upon a finding that the rescission by the defendant of its earlier resolution effectively involved a permanent retraction of allegations which it had previously pursued and which were the subject of the plaintiff's complaint. In contrast, in this case, no decision of the Council was rescinded. To the contrary, the resolution of 27 May 2010 to make and submit the draft CZMP to the Minister, which plan the applicants sought to challenge in their proceedings, remained unaffected by the resolution of 14 April 2011 to withdraw the draft CZMP and by the discontinuance of the proceedings. The Council did not make any concession as to the validity of the draft CZMP or any decision made by the Council or the Minister pursuant to the draft CZMP. 77The Council submitted that it was in this context that the primary judge correctly referred to the potential for any new draft coastal zone management plan to give rise to similar allegations of invalidity. This was not an error, contrary to the submissions of the applicant. The Council notes that, as the applicants conceded, there still are Supreme Court proceedings on foot which continue to plead that the draft CZMP was ultra vires and contrary to the Coastal Protection Act. The Council maintains a denial of these allegations in its defence in those proceedings. Hence, the allegations of invalidity of the draft CZMP have not been settled by the discontinuance of the Land and Environment Court proceedings. (c) The applicants failed to discharge the onus 78The Council submitted that the applicants failed to lead evidence which was capable of discharging the onus that there was a surrender or other proper basis for the exercise of a costs order in their favour. The primary judge's conclusion to that effect (at [254]) was plainly supportable. The applicants did not prove that the withdrawal of the Council's draft CZMP from the Minister's consideration, which rendered the proceedings otiose, bore any connection with the allegations of invalidity raised in the applicants' proceedings. 79The Council submitted that the withdrawal of the draft CZMP and the decision to create a new draft plan under the amended legislation and the new guidelines was plainly aptly described as a step in the evolution of the plan and the applicants' criticism of the Council's submissions to the primary judge to that effect were unfounded. (d) There was no basis for drawing an inference from the failure to call evidence from council officers 80The Council submitted that it was not required to call any council officers or councillor to give evidence as to why the Council made the decision it did on 14 April 2011. The Council submitted that such evidence would have been irrelevant. First, the opinions and motivations of some of the councillors do not establish the basis of the decision of the collegiate body that passed the resolution (referring to Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [76]-[79]). Secondly, the subjective considerations of the collegiate body (let alone the councillors) are immaterial (referring to Bitannia Pty Ltd v Parkline Constructions Pty Ltd at [81]). (e) There is no basis for drawing any inference from the failure to tender privileged material 81The Council submitted that a Jones v Dunkel inference arises where there has been an "unexplained failure" to call evidence. Preservation of privilege over legal advice is itself an explanation sufficient to dispel any such inference. The court does not permit destruction of privilege "by the back door" by drawing adverse inferences from the failure to adduce evidence of privilege communications (referring to Cooper v Hobbs [2013] NSWCA 70 and the authorities discussed therein). 82In any event, the Council submitted, the principle in Jones v Dunkel cannot operate to facilitate the drawing of a positive inference that the privileged material established a connection between the legal advice provided to the Council and the allegations in the applicants' proceedings in the court below, sufficient to demonstrate "surrender" in the necessary sense (referring to Portelli v Tabriska Pty Ltd [2009] NSWCA 17 at [55]). (f) The withdrawal of the draft CZMP was a supervening event in the normal course of the evolution of the draft CZMP 83The Council's resolution at its meeting of 14 April 2011 adopted the recommendation of Council management. Council management gave reasons for recommending that the Council resolve to withdraw the draft CZMP, which were not associated with the applicants' concerns raised in the proceedings. The Council submitted that there was no "complete volte face" by the Council in its resolution, contrary to the submission of the applicants. The fact that a draft recommendation of Council management might have been circulated to Councillors in the days prior to the council meeting but was not proceeded with at the council meeting of 14 April 2011, was irrelevant. The Council's position that the draft recommendation need not be produced was correct. (g) The primary judge did not ignore the transcript of the council meeting and it did not demonstrate surrender in any event 84The Council submitted that there was no basis for asserting that the primary judge ignored the transcript of the non-confidential session of the council meeting on 14 April 2011. The primary judge did consider it and concluded, correctly, that it did not demonstrate a "surrender" to the case made against the Council in the court below. The Council noted that the applicants asked the court to draw conclusions as to the subjective intentions of the councillors at the council meeting based on the transcript of the non-confidential part of the meeting. The Council submitted that such inferences have no relevance to any issue for determination. In any event, there was no statement of any councillor in the open session of the meeting as to his or her motivations or intentions in voting on the proposed resolution to withdraw the draft CZMP. 85The Council also submitted that there is no proper basis for the applicants' submission that the transcript showed that the legal advice before the Council was "the single event which caused the Council's change of position and led to the decision to withdraw the CZMP". The Council made its decision on the documents before it at the Council meeting. These included a report of the Council's Executive Manager, Environment and Planning, the recommendation of Council management and four annexures (of which three comprised confidential legal advice over which a privilege claim had been maintained by the Council). The primary judge accepted the Council's submission in the court below that the court should accept that council considered each of the documents before it at its meeting (at [233]). 86The Council further submitted that, even if it could be concluded that the reason for the Council's decision to withdraw the draft CZMP was to be found in the content of the privileged communications, there was no basis for the further conclusion that the content of the privileged communications establishes surrender. It cannot be inferred that the legal advice related in any way to the merits of the allegations raised in the proceedings in the court below. 87In relation to the primary judge's decision on reopening, the Council submitted no error in the exercise of the primary judge's decision to refuse leave to reopen has been established. The applicants have not identified with any clarity the "misleading nature of the Council's submissions" or the "erroneous submissions advanced by Council which were not corrected". The Council submitted that the applicants had misunderstood the Council's position as to the documents before the Council meeting on 14 April 2011. The primary judge found that the applicants' loose use of terminology in their correspondence with the Council, in relation to the various categories of documents that were before the Council, led to misunderstandings for the applicants (in [250] of the judgment). 88The purpose of the applicants' application to reopen was to seek access to material that was the subject of a claim for privilege. The primary judge's conclusion that the applicant should remain bound by their forensic decision not to seek production of that material at the hearing of the application for costs was reasonable. There was no sound basis for suggesting that privilege in respect of that material had been waived.

The primary judge's decisions are not established to be in error 89The applicants have not established any error in the primary judge's decisions as to costs or reopening sufficient to warrant appellate intervention in these discretionary decisions. The decision as to costs 90In relation to the costs decision, the foundation and the steps in the reasoning of the applicants' argument in the court below, and on the applications for leave to appeal are flawed. The applicants' argument for a costs order in their favour was founded on the assertion that the Council's resolution of 14 April 2011 to withdraw the draft CZMP demonstrated that the Council had capitulated or surrendered to the applicants by "delivering the very relief which the applicants had sought". From this foundation, the applicants' argument then proceeded by the following steps. First, the alleged capitulation or surrender of the Council established a prima facie position that the applicants should have their costs paid by the Council. Second, the Council bore the onus of displacing the prima facie position by proving that there was some explanation for the withdrawal of the draft CZMP that was inconsistent with the prima facie position that it should pay the applicants' costs of the proceedings. Third, the Council failed to establish an explanation for its withdrawal of the draft CZMP which displaced the prima facie position. The Council's explanations for the withdrawal of the draft CZMP were contrary to the evidence. Hence, the proper exercise of the costs discretion remained that the applicants should have their costs paid by the Council. This foundation and these steps in the reasoning process involved error. 91At the outset, it needs to borne in mind that the applicants bore the onus of establishing that the court below should make a costs order in their favour. As the discontinuing party, the applicants had to be the moving party to apply for an alternative costs order to that provided for in r 42.19(2). They had to establish some positive ground or good reason for making the alternative costs order sought. They bore the onus of proving the relevant primary facts, and the particular inferences that should be drawn from those facts, so as to establish the factual basis for the alternative costs order they sought. Finally, they bore the burden of persuading the court that the alternative costs order for which they contended was appropriate: see Bitannia v Parkline Constructions Pty Ltd at [70]. 92The applicants did not formally make an application for an alternative costs order in the court below. Leave was granted by the court below for the applicants to discontinue their proceedings with the question of costs being reserved. The applicants did not file a notice of motion seeking an alternative costs order. Rather, they sought such an order at the hearing of the reserved question of costs. This lack of formality in making application for an alternative costs order to that in r 42.19(2) may have contributed to the applicants' misapprehension of who bore the onus to establish that the court should make the costs order the applicant sought and to establish the factual basis for such an order. The applicants were incorrect in submitting before this court that the primary judge misplaced the onus on the applicants; to the contrary, the primary judge correctly applied the onus when he concluded that the applicants had made no real case for them to recover any of their costs from the respondents (at [254]). 93More particularly, the primary judge has not been shown to have erred in finding that the applicants did not establish the foundation on which the applicants' argument for a costs order in their favour depended. Contrary to the applicants' argument, the Council's resolution of 14 April 2011 did not deliver "the very relief" which the applicants sought in either of their proceedings in the court below. This is shown by a comparison of the relief sought in the originating process in each proceeding with the terms of the Council resolution. 94The summons in the first proceeding sought a declaration that the draft CZMP, adopted by resolution of the Council on 27 May 2010 and forwarded to the Minister for approval under s 55G of the Coastal Protection Act on 1 September 2010, was "void, invalid, unlawful and of no effect" (quoted in [56]). Such a prayer for relief was problematic from the outset. As the primary judge rightly observed, "the applicants have always had the difficulty that they were attempting to attack the validity of a draft policy document" (at [219]). A draft coastal zone management plan submitted to the Minister has no legal effect. Under the Coastal Protection Act at that time, before a coastal zone management plan had effect, the Minister must first have approved the submitted draft coastal zone management plan (under the then s 55G(2)) and the Council must next have made the plan and published it in the Gazette (under the then s 55H(1)). The coastal zone management plan would only take effect on the date it was published in the Gazette or such later date as was specified in the plan (under the then s 55H(2)). 95The Coastal Protection Act, at the time of time of the Council's resolution on 27 May 2010, required the Council to prepare a coastal zone management plan. The Council had earlier commenced the process of preparation of a coastal zone management plan. It had progressed to the point of the Council considering submissions made on the draft coastal zone management plan during the period of public exhibition. At its meeting on 27 May 2010, the Council resolved to amend the draft CZMP as a result of the submissions (which it had power to do under the then s 55F(3)) and thereafter to submit the draft CZMP to the Minister for approval (under the then s 55G(1)). The draft CZMP as amended was sent to the Minister on 1 September 2010 (at [50]). It was this amended draft CZMP sent to the Minister that was alleged by the applicants in their first proceeding to be invalid. 96The Coastal Protection Act was amended, effective from 1 January 2011. This amended the process for submitting and making coastal zone management plans. The Minister followed the process under the amended Coastal Protection Act for the draft CZMP which the Council had previously submitted on 1 September 2010. On 9 February 2011, the Minister referred the submitted draft CZMP to the Coastal Panel for advice (under s 55G(3) (at [57])). On 18 February 2011, the Coastal Panel recommended some amendments (at [60]). On 22 February 2011, the Minister returned the draft CZMP to the Council and directed the Council to amend and resubmit the plan with the recommended changes (under the new s 55G (4)(b) (at [60])). 97At this point in the process, on 1 March 2011, the applicants commenced the second proceeding in the court below. The applicants sought a declaration that the draft CZMP, as directed by the Minister to be amended by the Council in his direction dated 22 February 2011, "is or would be void, unlawful, invalid and of no effect" (quoted in [62]). The prayer for relief seemed to be directed to a plan that had yet to come into existence, being the plan that would be prepared by the Council amending the previously submitted draft CZMP with the changes recommended by the Coastal Panel, and thereafter being resubmitted to the Minister. That the applicants were challenging a plan yet to come into existence as being invalid added a further difficulty to that identified by the primary judge of the applicants attacking the validity of a draft policy document (at [219]). 98This then was the relief that the applicant sought in their two proceedings. This relief needed to be compared with the resolution of the Council at its meeting on 14 April 2011. That resolution was in four parts: 1. rescind Resolution 11-162 [which was passed on 3 March 2011 agreeing to make certain amendments to the draft CZMP but not others directed by the Minister]; 2. withdraw the current draft CZMP immediate[ly] and write to the Minister advising that Council will not be proceeding with that draft; 3. resolve to prepare instead a draft CZMP in accordance with the new statutory guidelines and new Coastal Protection Act regime; 4. note that a report will put to Council on project planning and implications of the new CZMP project. 99Although the resolution sought, first, to "withdraw the current draft CZMP" and, secondly, to not proceed with the draft, there was no statutory power enabling the Council to either withdraw a draft CZMP that had been submitted to the Minister or to not proceed with a submitted CZMP. Under the Coastal Protection Act, the Council was required to amend and resubmit a plan with the recommended changes within a specified period of time (s 55G(5)) but if the Council failed to do so, the Minister had power to make the plan with the recommended changes instead of the Council and such a plan was taken to have been made by the Council (s 55G(6)(a)). Hence, the Council's resolution of 14 April 2011 was legally ineffective - it did not cause the draft CZMP that the Council had earlier submitted to the Minster to be withdrawn from the Minister or to cease to have effect as a submitted draft CZMP which was required to be amended by the Council and resubmitted to the Minister to be made, or in default by the Council, which could be amended and made by the Minister. 100As a consequence, the Council's resolution of 14 April 2011 did not deliver the "very relief" that the applicants had sought in their two proceedings in the court below. The draft CZMP that had been submitted to the Minister on 1 September 2010, which the applicants claimed in the first proceeding was invalid, remained on foot notwithstanding the Council's resolution. The prospective draft CZMP (which would come into existence if and when the Council amended and resubmitted the draft CZMP with the recommended changes as directed by the Minister), which the applicants claimed in the second proceeding would be invalid when created, was also unaffected by the Council's resolution. As noted, if the Council failed to amend and resubmit the draft CZMP with the recommended changes as directed by the Minister, the Minister had power to make the plan with the recommended changes instead of the Council and such a plan would be taken to have been made by the Council. The Council's resolution of 14 April 2011 was legally ineffective to prevent the draft CZMP as directed to be amended by the Minister coming into existence. The fact that the Minister wrote some six weeks after the Council's resolution, advising that she did not intend to make the plan instead of the Council, did not make the Council's resolution legally effective. 101In both instances, the terms of the Council's resolution of 14 April 2011 did not accept as invalid either the draft CZMPs submitted on 1 September 2010 or any draft CZMP required to be amended and resubmitted to the Minister with the recommended changes. 102Hence, the Council's resolution of 14 April 2011 simply neither delivered the very relief sought by the applicants in their two proceedings, nor had the legal effect of removing the subject matter of those proceedings. 103The primary judge may not have been correct in saying that the Council's resolution "removed from the scene the very document upon which these proceedings rested" (at [221]), but he was correct in finding that the Council "never reversed its decision of 27 May 2010, to place a draft CZMP before the Minister" and that "no finding of invalidity of any draft has ever been made or conceded" (at [220]). 104In these circumstances, the primary judge did not err in finding that "there was no effective surrender or capitulation by the Council or the Minister, nor any "practical success" for the applicants (at [222]). 105The applicants, therefore, failed to discharge the burden of establishing the circumstance which was the foundation upon which their argument for a costs order in their favour depended, namely that the Council's resolution delivered the very relief the applicants sought in their two proceedings. 106The next two steps in the applicants' argument also were flawed. Even if it could be said that, by the Council's resolution of 14 April 2011 to withdraw the draft CZMP, the applicants achieved the relief they sought in the proceedings, this did not create a prima facie position that the applicants should have their costs paid by the respondent. There is no rule fettering the costs discretion that a discontinuing party who achieves practical success by a settlement or extra curial means is prima facie entitled to have its costs of the proceedings paid. Indeed, as McHugh J noted in Lai Qin, usually in such circumstances the proper exercise of the costs discretion will be that there be no order as to costs of the proceedings. 107In Lai Qin, McHugh J considered "the principles which govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra curial means" (at [624]). This, of course, was the circumstance relied upon by the applicants - that they elected not to pursue the two proceedings in the court below because they considered that they had achieved the relief that they had sought through the extra curial means of the Council resolving on 14 April 2011 to withdraw the draft CZMP, the validity of which was the subject of challenge in the proceedings. 108However, as I have noted earlier, the mere fact that a discontinuing plaintiff might be seen to have achieved the relief sought in the action, does not by itself and without more ordinarily justify the awarding of costs in favour of the discontinuing plaintiff. There usually needs to be in addition some unreasonableness in the conduct of the defendant such as to make a costs order against the defendant appropriate. 109The applicants ' argument that the authorities establish that there is a prima facie rule, that if the discontinuing party achieved practical success it is entitled to its costs, is incorrect. Rather, what the authorities establish is that, in order to justify the making of a costs order in favour of a plaintiff who discontinues proceedings, the plaintiff bears the burden of establishing not only that it achieved practical success but also that the defendant acted so unreasonably that the applicants should have their costs of the proceedings. 110In this case, the only conduct of the Council relied upon by the applicants was the Council's conduct at the meeting of 14 April 2011 in resolving to withdraw the draft CZMP and start the coastal zone management plan-making process afresh. The applicants bore the burden of establishing the primary facts and the inferences to be drawn from the facts, and of persuading the court below, that the Council's conduct in resolving to withdraw the draft CZMP was so unreasonable as to warrant a costs order in their favour. The applicants did not assay that task. In the mistaken belief that they had achieved practical success and were thereby prima facie entitled to a favourable costs order, they did not seek to prove the reasons or motives of the Council for the Council's resolution or that the Council's conduct in resolving to withdraw the draft CZMP was unreasonable. 111Instead, the applicants incorrectly reversed the burden by arguing that the Council bore the burden of providing some explanation for its conduct in withdrawing the draft CZMP that was inconsistent with the prima facie position that the Council pay the applicants' costs. The Council did not bear that burden. Hence, the primary judge did not err in accepting the Council's submissions that it did not bear the burden and in finding that the applicants had made no real case for them to recover their costs from the applicants (at [254]). 112As a consequence of the incorrect placing of the onus on the Council, the third step in the applicants' argument also involved error. The applicants argued that the explanations given by the Council for the resolution to withdraw the draft CZMP, that the resolution had nothing to do with the current proceedings and was merely part of an evolutionary process, were not supported by the evidence. As a consequence, the applicants argued that the Council failed to establish an explanation for its resolution to withdraw the draft CZMP and that the primary judge was therefore in error in accepting the Council's explanation. 113However, once it is recognised that the Council did not bear the burden to establish any explanation for its resolution of 14 April 2011, it becomes irrelevant whether any explanation the Council might have proffered was supported by the evidence. Let it be assumed that the explanations proffered by the Council were not established on the evidence (which I do not find). As it was no part of the applicants' case to provide any explanation for the resolution, the consequence would be that the court could make no finding as to the explanation for the Council's resolution to withdraw the draft CZMP. All the court could find was that the resolution was passed. But this would not mean that the applicants were entitled to have their costs paid by the Council. The mere fact that the Council passed a resolution to withdraw the draft CZMP, which had the assumed consequence of giving the applicants some practical success, did not create a prima facie position that the applicants should have their costs paid by the Council. Hence, the applicants' argument concerning the Council's failure to establish on the evidence its explanations for the Council's resolution, and the primary judge's alleged error in accepting the Council's explanations, have no consequence for the exercise of the costs discretion. 114In any event, however, the applicants have not established that the primary judge did err by failing to have regard to the evidence or accepting the Council's explanations for the Council's resolution to withdraw the draft CZMP. 115The applicants are incorrect in asserting that the primary judge did not refer to the transcript of the open session of the Council meeting of 14 April 2011. The primary judge expressly referred to the transcript being before the Court and identified it as Exhibit 'A1' (at [77]). The primary judge referred to the transcript in his summary of the respective parties' submissions made at the costs hearing on 31 August 2011. As the summaries revealed, senior counsel for the applicants and counsel for the Council both took the primary judge to the actual terms of the transcript that was in evidence and made submissions on what was recorded as having been said by the Mayor, the General Manager and other councillors at the meeting and what inferences could be drawn from what was said (see [97]-[109]). 116In the later hearing on 2 November 2011, the primary judge recorded that senior counsel for the applicants made submissions on the transcript of the open session of the Council meeting and the inferences that could and could not be drawn from the transcript (at [130]-[131]). The primary judge summarised the correspondence between the parties' solicitors leading up to the hearing on 2 November 2011, some of which included statements as to what the transcript indicated (see, for example, [153]). The primary judge also recorded the assertion of senior counsel for the applicants in his written submissions of 31 October 2011 that the Council's position was contrary to the transcript of the open session of the Council meeting on 14 April 2011 (at [192]). 117Having regard to these many references to the transcript, and summaries of the parties' submissions based on the transcript, it would not be proper to draw an inference that the primary judge ignored the transcript in deciding the question of costs. 118The applicants have also not established that the primary judge failed to have regard to the minutes and agenda papers for the Council meetings in February and March 2011 which showed that the Council was progressing with the draft CZMP and did not indicate that it was intending to withdraw the draft CZMP. 119The primary judge noted that the Council at its meeting on 3 March 2011 resolved in accordance with the Council officer's recommendation and he quoted the terms of the relevant resolution, resolution 11-162 (at [64]). The Council resolved, in summary, to agree to certain of the amendments to the draft CZMP recommended by the coastal panel but not others, and to request the Minister to refer the draft CZMP back to the coastal panel with a request that it reconsider certain of its recommendations in light of the Council's concerns and make a new recommendation to the Minister who could withdraw the existing ministerial direction and issue a new ministerial direction to the Council. However, notice of a motion to rescind resolution 11-162 was given on 3 March 2011, which rescission motion was dealt with by the Council at its meeting on 14 April 2011. 120The primary judge recorded the Council's submissions in the Court below that, after considering at its meetings held on 24 February, 3 March and 14 April 2011 whether to persist with the draft CZMP or start the process again, the Council resolved on 14 April 2011 to withdraw the draft CZMP (at [211]). 121The primary judge referred to the agenda papers that were before and considered by the Council at its meeting on 14 April 2011. The primary judge noted the source and the specific page numbers in the evidence of these papers (at [75] and [104]). These agenda papers included a five page paper entitled "Comments Executive Manager Environment and Planning". The primary judge expressly identified this paper in the evidence (at [75]) and [104]). That paper:

gave notice of the motion to rescind resolution 11-162 from the Council meeting on 3 March 2011 and set out in full the terms of resolution 11-162;
noted that the current draft CZMP could proceed under transitional provisions of the amended coastal protection legislation but if the Council withdrew the current draft CZMP, the Council would have to abandon the current draft and prepare a new draft CZMP in accordance with the new statutory regime;
canvassed four Council's options and four Minister's options regarding the draft CZMP, the Council's options being to resolve to withdraw the draft CZMP (option 1), resolve to ask the Minster to reject the draft CZMP (option 2), request the Minister to refer the Council's concerns back to the coastal panel for reconsideration ie continuation of resolution 11-162 (option 3), and acceptance of all of the terms and conditions of the Minister's direction (option 4);
noted the 90 day deadline in which the Council was required to comply with the Minister's directions to amend and resubmit the plan (ie expiring on 23 May 2011);
noted that this timeframe meant that the Council was only left with options 1 or 4, the Council being unlikely to be able to take all the necessary steps for the other options in the time left;
noted that the applicants had not made any application for interlocutory injunctive orders in the two proceedings in the Land and Environment Court, presumably because the Council was prevented from taking any action on resolution 11-162 because of the notice of rescission of resolution 11-162 given at the 3 March 2011 meeting, but if the applicants were to obtain an interlocutory injunction this would further adversely impact on the remaining 40 day period within which the Council needed to take action before the Minister's deadline expired; and
recorded Council's management recommendation to adopt option 1 involving rescinding resolution 11-162 and withdrawing the current draft CZMP and preparing instead a draft CZMP in accordance with the new statutory guidelines and new Coastal Protection Act regime. 122The primary judge referred to this presentation of options (at [76]) and the Council's resolution which was in the terms recommended by Council management (at [78]). The primary judge recorded the Council's submissions on the options discussed in the paper for the 14 April 2011 meeting (at [102]-[103] and [230]-[231]). 123Having regard to these references and discussion of the Council's resolution at its meeting on 3 March 2011, the rescission motion of that resolution, and the Council's consideration and resolution at its meeting on 14 April 2011, it would not be proper to draw the inference that the primary judge failed to have regard to the minutes and agenda papers for the meetings in February, March and April 2011, or that he failed to appreciate that the Council had been pursuing one course of action of seeking to amend the draft CZMP, as manifested in resolution 11-162 at the 3 March 2011 meeting, but resolved to pursue another course of action when it rescinded resolution 11-162 and resolved to withdraw the draft CZMP and prepare a new draft CZMP. To the contrary, the primary judge's reasons reveal that he understood this sequence of events. 124The applicants have also not established that the primary judge erred in accepting what the applicants contended was the Council's submission that the Council's decision to withdraw the draft CZMP was part of an evolutionary process. 125The primary judge recorded the Council's submission concerning evolution as applying to the Council agenda for the 14 April 2011 meeting. He recorded: "The Council agenda 'evolved', to use Mr Hemmings' term, from a series of alternatives in a 'not finalised agenda' to 'an actual report for consideration by the Council'" (at [104]). The primary judge identified the report actually presented to the Council on 14 April 2011. It was this submission that the Council agenda had evolved that set in motion the applicants' application to gain access to the "not finalised agenda" and to reopen its case (see at [241] where the primary judge recorded the applicants as saying that they were compelled to respond to the Council's "evolution of the document" case). 126The primary judge also recorded the Council as having referred to the options in Council management's "Comments Paper", considered by the Council at its meeting on 14 April 2011, as having been "formulated in an evolutionary way over time" (at [230]). 127The primary judge, however, did not record the Council as submitting that the Council's resolution at its 14 April 2011 meeting to withdraw the draft CZMP was itself part of an evolutionary process. 128Hence, insofar as the primary judge stated that he preferred the submissions made by the Council (at [249]), which submissions he said he had set out in great detail in the judgment, the primary judge is to be taken to have accepted only the submissions he recorded that the agenda papers for the 14 April 2011 meeting evolved, and that the range of options in the comments paper were formulated in an evolutionary way over time, and not that the decision to withdraw the draft CZMP was itself part of an evolutionary process. 129Hence, the applicants' argument that the evidence did not establish that the Council's decision to withdraw the draft CZMP was part of an evolutionary process is immaterial. If the primary judge did not so find, it matters not whether the evidence supported or contradicted such a finding. 130The applicants' submission that the primary judge erred in accepting the Council's submission that the Council's decision to withdraw the draft CZMP had nothing to do with the current proceeding because that submission was contradicted by the evidence, suffers from a different problem. It is true that the primary judge recorded the Council as having submitted that the decision on 14 April 2011 "was totally independent of the applicants' then current proceedings" (at [211]). However, the primary judge also recorded the Council as saying, at the later hearing on the application to reopen, that in making this earlier submission the Council was simply replying to the applicants' argument that an inference should be drawn that the Council withdrew the draft CZMP "because it was advised by its insurer that that course would give it a strategic advantage in resolving the litigation" (at [234]). The Council said that its submission was "purely in reply" to the applicants' submissions and that in fact it accepted that it was irrelevant to inquire into the subjective matters being considered by the councillors before they made their decision (at [235]). 131In fact, it was the applicants who put the submission that the Council's decision to withdraw the draft CZMP was because the insurer had made a recommendation to the Council to do so (see, for example, at [124]). When this was rebutted by the Council in reply, the applicants attempted to reopen its case and gain access to the insurer's legal advice and the transcript of the confidential session which the applicants believed discussed the insurer's legal advice. 132The applicants' argument that the primary judge erred, therefore, impermissibly shifted the burden of proof from the applicants to the Council. If the applicants wished to argue that the insurer's legal advice was the single event that caused the Council's decision, the applicants bore the burden of proving that fact in their case in chief or reply at the hearing. The Council did not bear the burden of proving that the Council's decision was caused instead by one or more other events and the Council in its case did not seek to prove that. The Council's case was simply that the Council made its decision based on the documents that were before it at the meeting (at [233]). 133In these circumstances, the primary judge's statement of preference for the submissions of the Council and his finding that the evidence supported the Council's case (at [249]) cannot be taken as necessarily accepting the Council's submission in reply that the Council's decision was totally independent of the applicants' then current proceedings, rather than the Council's primary submission that the subjective matters considered by the Council in reaching its decision were irrelevant. The applicants have therefore not established that the primary judge did accept a submission by the Council that the Council's decision to withdraw the draft CZMP had nothing to do with the current proceedings, as the applicants allege. 134The applicants' argument that the primary judge should have rejected any case put by the Council that invited inferences as to what councillors did or thought at the Council meeting on 14 April 2011, in the absence of evidence from them, also involved a transfer of the burden of proof from the applicants to the Council. It was the applicants, not the Council, who bore the burden of proving what the councillors did or thought at the meeting that caused them to vote in favour of the resolution to withdraw the draft CZMP. Hence, no Jones v Dunkel inference can be drawn against the Council for failing to call evidence from the councillors or council officers. 135The final error the applicants allege the primary judge made was to accept the Council's erroneous submission concerning the draft version of the agenda papers for the Council meeting of 14 April 2011. This argument may be disposed of shortly. The applicants have not established that the primary judge either accepted the Council's submission on the draft agenda papers or that such submission infected his characterisation of what occurred at the meeting of 14 April 2011. 136The primary judge did note in his reasons that draft agenda papers had been prepared (for example, at [102], [118]-[119]), but noted that these were replaced by the agenda papers that were actually considered by the Council. The primary judge identified correctly the actual agenda papers (at [75] and [104]). His recount and characterisation of what occurred at the meeting on 14 April 2011 was based on the agenda papers actually presented to the Council, not the draft ones. The primary judge recorded in great detail the "voluminous" and "rather intemperate" correspondence between the applicants' solicitors and the Council's solicitors concerning the draft agenda papers and the applicants' assertions that counsel for the Council's submissions on the draft agenda papers contained errors (at [113]-[192]). In the end, however, the applicants have not shown that the primary judge based his decision on the draft agenda papers or any submission of the Council on those papers. Hence, whether the submission of the Council was erroneous in some way has no consequence. The decision as to reopening 137The applicants have not established the primary judge's decision not to grant leave to the applicants to reopen their case involved error. The applicants argued that the primary judge should have granted leave to reopen so as to allow them to respond to the Council's changed case put at the end of the hearing on 31 August 2011 as to the explanation for the Council's decision to withdraw the draft CZMP and to correct the allegedly erroneous submission concerning the draft agenda papers for the 14 April 2011 meeting. These were the same arguments that were put before the primary judge. He did not agree that they provided sufficient justification for leave to reopen to be given. 138The applicants have not demonstrated that the primary judge's decision involved an error of a kind sufficient to warrant appellate intervention in the quintessentially discretionary decision of practice and procedure of whether to allow the applicants to reopen their case after they had had ample opportunity to put their case in chief and to reply to the Council's submissions at the hearing on 31 August 2011. The applicants simply assert that the primary judge was wrong in not allowing the applicants to respond to the Council's submissions and by not allowing the applicants to do so they were denied procedural fairness. This is, however, simply to dispute the outcome of the primary judge's decision and its consequence on the applicants. The applicants have not demonstrated that the primary judge, in deciding not to grant leave to reopen, made an error of legal principle, made a material error of fact, failed to take into account or gave insufficient weight to some relevant matter, or arrived at a manifestly unreasonable or unjust decision. The primary judge's decision not to allow the applicants to reopen to address the Council's submissions on the explanation for the Council's decision to withdraw the draft CZMP and on the draft agenda papers also has not caused substantial injustice. The applicants' arguments on those submissions of the Council are flawed for the reasons given earlier in relation to those arguments on the question of costs.

The single appeal judge's reasons 139The applicants had sought, by notice of motion, access to certain documents over which client legal privilege had been claimed (legal advices and the recording and transcript of the confidential session of the Council meeting on 14 April 2011) on the basis that privilege had been waived by its written submissions filed in the Court of Appeal and served on the applicants in response to the applicants' applications for leave to appeal against the primary judge's decisions in the court below. The applicants argued that the Council in its written submissions asserted a case which was inconsistent with the maintenance of privilege in a way that was unfair, as stated in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29] and [34]. 140The single appeal judge determined that privilege had not been waived and dismissed the applicants' notice of motion with costs. The reasons fell into two categories: first, waiver of privilege cannot be effected merely by the service of submissions and, second, the particular submissions made by the Council did not in fact effect a waiver of privilege. 141As to the first, the single appeal judge said: 7. Neither party was able to refer me to a case where waiver had occurred by reference to submissions, as opposed to an issue being created by what was said in defence (as in Hine v New South Wales Land and Housing Corporation [2009] FCA 502) or, as is more conventional in these cases, by way of the evidence that a party has adduced. Many of those cases are referred to in Cooper v Hobbs [2013] NSWCA 70 at [64] - [74]. 8. I am inclined to accept Mr Donaldson SC's submission for the Council that waiver cannot be effected merely by the service of submissions. Although that is an absolute proposition, it is supported by the proposition that the submissions themselves to the extent that they refer to evidentiary material, and that is the sense in which it is sought to deploy them for the purposes of waiver, cannot go higher than that evidentiary material. That is to say, it is entirely open and appropriate for submissions to describe, emphasise, and in some cases minimise, the evidence before the Court, but to the extent that they go beyond the material before the Court, at least in an ordinary case, they would not give rise to the inconsistency coupled with unfairness referred to in Mann v Carnell. 9. Although I have said that as an absolute proposition, it is certainly possible that there may be cases (I have in mind for example cases of litigants in person) where a different approach might need to be taken. That is not this case though, where both parties are assisted by able counsel, and no person reading the submissions served by the Council could conclude that there was an attempt intentionally to waive privilege in the very documents the subject of the reopening application in respect of which it is the gravamen of the respondent's response to oppose the grant of leave. 142The single appeal judge returned to this argument at the end of his judgment saying: 33 I should deal with one further submission made by Mr Cotman in support of his application that the way in which a case is run, as opposed to the pleadings and the evidence, can give rise to waiver. He said that all that was sufficient was a party doing something which is calculated to advance their position. It is perhaps implicit in what I have already said, but I should make my rejection of it explicit. The question of waiver goes to what evidence may be adduced before the Court for the determination of the issues that arise in this case from the notice of appeal. The submissions that are made by a party will, to the extent that they are supported by the evidence, be borne in mind by the Court, but to the extent that they go beyond the evidence, will not, at least in ordinary cases, give rise to the requisite inconsistency coupled with unfairness that is necessary in order for there to be waiver. 143As to the second category of reasons, the single appeal judge found that, even if submissions were capable of giving rise to a waiver of privilege, the particular submissions made by the Council in this case did not go so far. His Honour recorded that the parties took him through the particular sentences that were said to amount to a waiver of the privileged communications (at [10]). He then dealt with each of the identified sentences in the Council's submissions and found that, in each case, they did not give rise to a waiver of privilege (at [11]-[26]). 144The single appeal judge also recorded that he was taken to passages in the transcript of the non-confidential session of the Council on 14 April 2011, principally for the purpose of drawing the inference that there was a discussion of the legal advice during the confidential session. He noted that he could draw that inference but it did not take the case in favour of waiver any further (at [27]). 145The single appeal judge then stated that he was confirmed in his view that the applications for access to the privileged documents should be dismissed by two other considerations. The first was that what was before the Court substantively was an application for leave to appeal from the decision of the primary judge who dealt with a similar argument on the application to reopen in order to gain access to and tender the privileged communications (at [29]). Much of what was argued by the applicants in support of the application for access to the privileged documents would be reiterated in support of the grounds of appeal dealing with the challenge to the primary judge's reopening decision. This was not a case where there was a decision which was not the subject of challenge on the application for leave to appeal (at [31]). 146The second was that, if it could be said that the submissions that will be advanced by the Council at the concurrent hearing of the applications for leave and the appeal itself can give rise to a basis for waiver, the applicants could make a similar application to the appellate court based on any further submissions that were made by the Council at that hearing that the applicants contend give rise to waiver (at [31]).

The applicants' argument that the single appeal judge erred

The applicants contended that the single appeal judge erred in five ways 147First, the single appeal judge failed to find that the Council had, by its conduct in advancing particular submissions, waived privilege otherwise attaching to the legal advices and the recording and transcript of the confidential session of the Council meeting on 14 April 2011. He failed to address the applicants' arguments that the paragraphs of the Council's submissions had opened up the privileged material to scrutiny. 148Secondly, the single appeal judge erred in approaching the matter on a paragraph by paragraph basis and not considering the effect of the Council's case as propounded on the continued maintenance of the privilege. 149Thirdly, the single appeal judge erred in holding that waiver could not occur by reason of written submissions, as distinct from occurring by reason of inclusion of matter in evidence or in a pleading. 150Fourthly, the single appeal judge erred in considering that the proposition that submissions could rise no higher than the evidence was relevant to the question of imputed and issue waiver. 151Fifthly, the single appeal judge erred in considering as relevant whether or not the Council intended to waive privilege by any aspect of its conduct and in finding that there had been no such intention.

The Council's argument that the single appeal judge did not err 152The Council submitted that the single appeal judge did not err for five reasons. 153First, the single appeal judge did not err in finding that, as a general proposition, the inconsistency or fairness required to found a waiver of privilege will not arise from submissions as distinct from evidence and pleadings. This is because submissions are neither a substitute for evidence nor serve to define the case that a party must seek to address by evidence. 154Secondly, even if the circumstances in which a different approach may be justified are more common place than the judge suggested (in [9]), the approach was correct in the circumstances of the application which the Court was addressing. The Council's decision not to waive privilege and not to tender evidence of the privilege communications prevented it from proving the content of the advice. Any submission purporting to rely upon the content of the communications would be futile and, consequently, would not be productive of unfairness or inconsistency. 155Thirdly, even if the single appeal judge's approach that waiver generally cannot occur by submissions were not to be correct, the single appeal judge went on to consider each allegation of waiver in this case and correctly identified that there was no disclosure of, or reliance upon, the substance of any of the legal advices over which privilege had been claimed. 156Fourthly, although the applicants assert that disclosure of the whole or part of the legal advice is not the only conduct capable of producing unfairness, the applicant did not identify any alternative conduct of the Council which was capable of doing so. 157Fifthly, the Council's submissions did not in fact waive privilege over the legal advices and communication. The Council was at liberty to maintain privilege over the confidential communications and its election to do so did not give rise to any adverse inference concerning the content of the advice. Further, the making of submissions as to what inferences were properly available from the evidence which had been tendered did not involve inconsistency or unfairness. It merely reflected the position which the Council's entitlement to maintain privilege, without adverse inference, placed the parties. The Council's contention that the applicants bore the onus in relation to obtaining the special costs they sought could not amount to a waiver and did not involve relying upon the privileged communication.

The single appeal judge has not been shown to have erred 158The applicants have not discharged the heavy burden that they bear to show that the single judge of appeal's decision on the particular matter of practice and procedure in question should be set aside. None of the errors contended by the applicants have been established. 159The mere fact that the single appeal judge found that privilege had not been waived and in doing so did not uphold the applicants' argument that it had been, does not reveal that the judge committed an error of the kind necessary to justify setting aside the decision. 160The fact that the single appeal judge dealt with the applicants' argument on a paragraph by paragraph basis does not reveal any error. That was necessary to address the applicants' argument that particular statements of the Council in its submissions disclosed the content of privileged communications or necessarily laid open the privileged communications to scrutiny. It was necessary in order to address the applicants' argument to deal with each statement relied upon by the applicants as giving rise to waiver of privilege. No error was committed by the single appeal judge in doing so. 161Although the applicants submitted that in adopting a paragraph by paragraph approach the single appeal judge did not consider the effect of the Council's case as propounded on the continued maintenance of the privilege, the applicants do not identify how the single appeal judge's approach caused him not to consider the effect of the Council's case on the maintenance of privilege or any particular respect in which the single appeal judge did not consider that effect. 162The assertion that the single appeal judge limited his inquiry to s 122(3) of the Evidence Act 1995 and failed to consider s 122(2) of the Evidence Act is without foundation in the single appeal judge's reasons. Nowhere does the single appeal judge say he did so. 163The single appeal judge's statements concerning whether waiver can be effected merely by service of submissions do not establish error sufficient to warrant the discharge of his decision. First, the single appeal judge said he was "inclined" to accept the proposition that waiver cannot be effected merely by the service of submissions(at [8]). He did not finally determine that proposition. 164Secondly, the single appeal judge noted that the proposition was not universally applicable. He noted that it might be applicable "in an ordinary case" but that there may be cases where a different approach might need to be taken (he instanced the cases of litigants in person) (at [9]). 165Thirdly, the single appeal judge's reference to the proposition that submissions can ordinarily go no higher that the evidence before the Court was given by way of support of the proposition that waiver cannot be effected by mere service of submissions. A court will not accept a submission that goes beyond the evidence - facts and inferences drawn from facts are proved by evidence, not assertions in submissions. Hence, the single appeal judge said that submissions that go beyond the evidence will not, in ordinary cases, give rise to the requisite inconsistency coupled with unfairness that is necessary in order for there to be waiver. The single appeal judge's employment of this proposition in support of the proposition that waiver ordinarily is not effected by the mere service of submissions does not reveal error. The single appeal judge was not conflating or confusing the different propositions. 166Fourthly, the employment of the proposition that submissions cannot go higher than the evidence was not material to the outcome of the decision. The single appeal judge's conclusion that privilege had not been waived was arrived at independently by an examination of the particular submissions alleged by the applicants to have given rise to waiver. 167Finally, the single appeal judge's reference to the Council not having intended to waive privilege does not reveal any error of principle. The single appeal judge referred to intention to waive privilege in three instances. First, he made the point that "no person reading the submissions served by the Council could conclude that there was an attempt intentionally to waive privilege in the very documents the subject of the reopening application in respect of which it is the gravamen of the respondent's response to oppose the grant of leave" (in [9]). This was a pertinent observation. One of the decisions of the primary judge in respect of which the applicants were seeking leave to appeal was the decision to refuse leave to the applicants to reopen their case to tender privileged communications. The Council in the court below had opposed leave being granted to reopen because, amongst other grounds, the Council maintained its claim for privilege over the documents which the applicant wished to tender in their case on any reopening. The submissions served by the Council in response to the applicants' application for leave to appeal against the primary judge's decision to refuse leave to reopen continued to claim privilege over the documents. It was in this context that the single appeal judge noted, correctly, that no person reading the submissions served by the Council could conclude that there would be an attempt to waive privilege in the documents over which the Council continued to maintain privilege. Certainly, the single appeal judge was not articulating a test to be applied in determining whether privilege had been waived of whether there was an intention to waive privilege. 168The second reference was in the single appeal judge's addressing of the applicants' argument that paragraph 15 of the Council's submissions had waived privilege. Paragraph 15 recorded the unchallenged fact that the Council at its meeting on 14 April 2011 had before it "a report of Council's Executive Manager Environment and Planning, the recommendation of Council Management and four annexures (of which three comprised confidential legal advice over which a privilege claim has been maintained by Council)". Of course, the confidential legal advice was one of the documents in respect of which the applicants were seeking access and asserting that privilege had been waived. The single appeal judge said two things about this paragraph in the Council's submissions, the first of which contained his reference to intention. He said: First, there can be no doubt, in light of its closing words, that the author of the submissions was at pains to make it plain that nothing in what was said was intended to waive privilege over what was described as the confidential legal advice. (at [18]). 169This was unexceptional. It would be perverse to have found that privilege over confidential legal advice was waived by stating in the submission that privilege over that confidential legal advice had been maintained. The single appeal judge was not formulating a test for waiver of privilege of intention to waive or maintain privilege. 170The third reference was in the single appeal judge's dealing with paragraph 27 of the Council's submissions. The single appeal judge found that that paragraph went beyond the evidence. It was a negative submission to the effect that the evidence did not support a certain conclusion, but the single appeal judge considered that the evidence did support the conclusion. The single appeal judge then stated: However, the fact that a submission, in a document prepared by experienced counsel, goes (slightly or substantially) beyond the evidence, of itself, is in my view no reason to engage the principles of inconsistency coupled with unfairness. There is no inconsistency, because it is plain that there was no intention for there to be any waiver of privilege. Moreover, there is no unfairness, as is plain from the fact that Ms Coleman has drawn my attention and no doubt the appellate court's attention will be drawn, to the letter of Ms Kelly of 30 August 2011. (at [26]) 171The way in which the single appeal referred to intention is similar to the way he referred to it when dealing with paragraph 27 of the Council's submissions. Privilege is not waived by making a submission that communications are privileged. There is no inconsistency. The single appeal judge's statement that there was no unfairness was a consequence of the letter of Ms Kelly to which he referred continued to maintain a claim for privilege. The single appeal judge had earlier referred to this statement in the letter of Ms Kelly (see at [23]). 172For these reasons, the applicants have not established that the single appeal judge's decision should be set aside. The applicants two notices of motion filed 23 September 2013 seeking an order pursuant to s 46(4) of the Supreme Court Act should be dismissed.

Further notices of motion regarding receiving additional evidence on appeal 173After the hearing and decision of the single judge of appeal disposing of the applicants' notices of motion seeking access to the privileged documents, the applicants filed notices of motion on 11 October 2013 seeking that this Court receive into evidence under s 75A(7) of the Supreme Court Act a copy of the redacted transcript of the confidential session of the Council meeting provided to the applicants by the Council and copies of two letters from the Council's solicitors to the applicants' solicitors dated 29 and 30 August 2011. In their written submissions, the applicants contended that the documents were relevant to the determination of the issues raised by the Council in opposition to the applicants' costs application in the court below (and presumably the applicants' application for leave to appeal the primary judge's costs decision). In oral argument before this court, the applicants contended that the resolution of the application under s 46(4) of the Supreme Court Act to discharge the single judge of appeal's decision would inform the resolution of the application under s 75A(7) of the Supreme Court Act to receive the evidence. 174The Council objected to this Court receiving into evidence the correspondence and the redacted transcripts of the confidential session of the Council meeting on 14 April 2011 on the grounds that all three of the conditions that Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 held should be satisfied, were not met. For the correspondence, the Council submitted that the first and second Akins conditions were not met. As to the first, the correspondence was dated 29 and 30 August 2011 and hence was available before the first day of the hearing on 31 August 2011 of the costs application in the court below and could have been tendered for use in the hearing. As to the second, it cannot be said that had the correspondence been tendered in the court below there was a high degree of probability that there would have been a different decision on costs. 175For the redacted transcript, the Council did not take any point in relation to its availability at the time of the hearing in the court below. The Council accepted that the applicants had made reasonable endeavours to obtain the transcript of the confidential session of the Council meeting on 14 April 2011 but the Council did not provide the redacted version of the transcript to the applicants until the hearing before the single judge of appeal on 9 September 2013. However, the Council did maintain that the second Akins condition was not met in that there was not a high degree of probability that there would have been a different decision on costs had the redacted transcript been received into evidence in the court below. 176I consider the documents should not be received into evidence. The applicants have not demonstrated special grounds justifying receiving the documents into evidence. The two letters were available at the time of the hearing of the applicants' costs application in the court below but the applicants did not tender them at that time. They did tender them on their application to reopen. In any event, however, it has not been demonstrated that, had they been tendered at the costs hearing, the primary judge's decision on costs would have been any different. 177It has also not been demonstrated that had the redacted transcript of the confidential session of the Council meeting been received into evidence in the court below, the primary judge's decision on costs would have been any different. The redacted transcript did show that there was reference to and some discussion of the insurer's legal advice in the confidential session, but these facts were already known by the primary judge from the agenda papers which referred to three legal advices (of which the insurer's legal advice was one) being attached and the fact that the Council moved into the confidential session in order to discuss confidential legal advice. The primary judge also knew that the applicants were arguing that the single event which caused the Council to resolve to withdraw the draft CZMP was the advice from the insurer. The redacted transcript adds little, if anything, to what was already known as to what occurred in the confidential session and what the applicants' case was. In these circumstances, there was not the necessary high degree of probability that the redacted transcript would have led to a different costs decision by the primary judge.

Conclusion and proposed orders 178The applicants have not established that the primary judge's decisions on costs and reopening are attended by sufficient error of a kind warranting appellate intervention in these discretionary decisions of practice and procedure. Leave to appeal against these two decisions should not be granted. 179The applicants have also not established that the single judge of appeal's decision that privilege had not been waived by the Council's written submissions is attended by sufficient error of a kind justifying the discharge of that discretionary decision of practice and procedure. The applicants' notices of motion under s 46(4) of the Supreme Court Act should be dismissed. 180Finally, the applicants have not established special grounds justifying the receipt into evidence of the correspondence between the solicitors and the redacted transcript of the confidential session of the Council meeting on 14 April 2011. The applicants' notices of motion under s 75(7) of the Supreme Court Act should be dismissed. 181In respect of each application, as the applicants have been unsuccessful, the applicants should pay the Council's costs. 182The orders I propose are that the Court: (1) Dismiss each summons seeking leave to appeal in proceedings CA 2013/13396 and 2013/13401 against the decision of Sheahan J of the Land and Environment Court of NSW on 20 December 2012. (2) Dismiss each notice of motion filed on 23 September 2013 in proceedings CA 2013/13396 and 2013/13401 seeking an order to discharge the orders and decision of Leeming JA of this Court on 9 September 2013. (3) Dismiss each notice of motion filed on 11 October 2013 in proceedings CA 2013/13396 and 2013/13401 seeking an order that this Court receive into evidence certain documents. (4) Order the applicants to pay the first respondent's costs of proceedings CA 2013/13396 and 2013/13401.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 April 2014

(2006) 143 LGERA 441

(2006) 143 LGERA 277

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