Wentworth v Attorney-General

These appeals are a continuation of litigation, unfortunately protracted, which commenced in 1979 when the Attorney-General for New South Wales, suing at the relation of the present appellant, Miss Wentworth, commenced proceedings in the Supreme Court of New South Wales against the Woollahra Municipal Council ("the Council") and Messrs. A. and P. Kladis. The circumstances out of which the case arose, and the course of the litigation, have already been recounted in a number of judgments, but it is nevertheless necessary briefly to restate such of them as are now relevant. Miss Wentworth was the occupier and one of the owners of a house at Bellevue Hill. Messrs. Kladis became the owners of adjoining land on which they constructed a house which, Miss Wentworth claimed, seriously interfered with the amenity of the land which she occupied. She claimed that the effect of cl. 43 of the Woollahra Planning Scheme Ordinance was that an approval given by the Council to the erection of the house was void and that the erection itself was illegal. She alleged further that Messrs. Kladis did work on the building which departed from the approval which the Council had given. Miss Wentworth claimed that the Council subsequently purported to give approval to certain of the work that had been done but that under s. 311 of the Local Government Act 1919 N.S.W., as amended, it was not possible to give such retrospective approval. In the action the Attorney-General claimed declarations that the building permit and subsequent approvals given by the Council were void and that the building was unlawfully erected and a mandatory injunction requiring the demolition of the house. There was no claim for damages; indeed, the Attorney-General proceeding on relation could not have made any such claim.

The action came on for hearing in the Equity Division of the Supreme Court of New South Wales before Powell J., who dismissed the action and ordered that the relator pay the costs of the defendants. The Attorney-General appealed to the Court of Appeal. Shortly before the appeal was heard the Attorney-General withdrew his fiat. The Court of Appeal was then faced with a difficult situation. It was bound to terminate the appeal by the Attorney-General but it was feared that if Miss Wentworth had an independent right of action the hearing of any such action might be fatally embarrassed by a plea of issue estoppel based upon the findings of Powell J. which were challenged. All counsel conceded that the judgment of Powell J. contained errors of principle which affected vital issues (to use the words of Hutley J.A. in the Court of Appeal) and it was thought that if the withdrawal of the Attorney-General's fiat led to the complete termination of the proceedings a grave injustice might be done. The Court of Appeal accordingly ordered that Miss Wentworth be added as a plaintiff and appellant and that the Attorney-General be dismissed from the proceedings and that Miss Wentworth be given leave to file an amended statement of claim. She did so and in par. 14 claimed "special damage by reason of the contraventions of s. 311 of the Local Government Act 1919 ". Her claims included a claim for damages. Their Honours in the Court of Appeal recognized that for Miss Wentworth to succeed it was necessary for her to establish that she had suffered special damage - a matter which was in contest - but the respondents, for the purposes of permitting the motion to be heard and for Miss Wentworth to join as a plaintiff and appellant, and for those purposes only, were prepared to concede that Miss Wentworth might be able to establish special damage. Argument in the Court of Appeal was heard on that footing. The Court of Appeal held that Miss Wentworth was not entitled to any relief, whether by way of injunction or damages, for the construction of the building in breach of cl. 43 (if there had in truth been such a breach) because a defence of laches had been made out. However, they considered that the issues of fact raised by the claim that Messrs. Kladis had, in erecting the building, executed works which did not conform to the building plans approved by the Council should be remitted to the Equity Division. They accordingly allowed Miss Wentworth's appeal and on 24 February 1981 ordered (inter alia) as follows:

3. Remit the proceedings to the Equity Division for decision of the following issues: -

(a) whether the departures by the second and third respondents from the building plans approved by the first respondent, alleged in par. 14 of the amended statement of claim, have occurred;

(b) whether the appellant has suffered special damage by reason of the matters pleaded in par. 14 of the amended statement of claim filed on 7 February 1981;

(c) whether the appellant has been guilty of laches acquiescence or delay;

(d) whether the second and third respondents are entitled to have the proceedings dismissed in the exercise of the Court's discretion either absolutely or on terms;

(e) the proper remedies (if any) to which the appellant is entitled in the light of these findings.

4. Costs of the proceedings brought by the Attorney-General and of this appeal except the costs occasioned by the amendment of the statement of claim, which are to be paid by the appellant in any event, reserved to this Court to be determined after the remitted proceedings have been decided.

From this decision Miss Wentworth appealed to this Court, seeking to have that part of her case which concerned the alleged breach of cl. 43 also remitted to the Equity Division. Before the appeal came on for hearing her land was sold under an order of the Family Court. Mr. Beaumont of counsel, who appeared on her behalf, conceded that in the light of this change of circumstances the only claim which she could possibly make was for damages. He submitted that s. 68 of the Supreme Court Act 1970 N.S.W. (which re-enacts the provisions of Lord Cairns Act) enabled the Court to award damages to Miss Wentworth for the breach of Messrs. Kladis of the provisions of the Woollahra Planning Scheme Ordinance. The Court, however, held that s. 68 did not authorize an award of damages for breach of a statutory provision which manifested no intention to create a private right of action for damages, and dismissed the appeal: see Wentworth v. Woollahra Municipal Council [1] . There was no cross-appeal, and orders Nos. 3 and4 of the order of the Court of Appeal were left untouched.

Miss Wentworth subsequently applied to this Court for an order vacating the order dismissing her appeal and for a rehearing or, alternatively, for an order remitting to the Supreme Court questions relating to equitable relief that might be available to her. That application also was dismissed [2] .

When the matter came on again before Powell J., pursuant to order No. 3 of the order of the Court of Appeal, Miss Wentworth objected to him hearing the matter. Counsel for the defendants, on the other hand, submitted that in the light of the decision of this Court a further trial of the remitted issues would be futile. Powell J. suggested that these questions should be resolved by the Court of Appeal. Thereafter Messrs. Kladis moved the Court of Appeal to set aside order No. 3 of the order made by the Court of Appeal on 24 February 1981 and Miss Wentworth applied for an order that the matters previously remitted be dealt with by the Court of Appeal or the Equity Division but not by Powell J. The Court of Appeal held that further proceedings would be futile in the light of the High Court's judgments and on 31 March 1983 made the following order:

Order No. 3 made by the Court of Appeal on 24 February 1981, set aside.

Costs of original hearing before Powell J. to be paid by the Attorney-General; costs of the appeal to this Court of hearing directed by order No. 3 before Powell J., and of these motions to be paid by the appellant.

From this decision Miss Wentworth has appealed as of right ( appeal No. 32/83).

The Attorney-General for New South Wales then applied on summons to the Court of Appeal for an order that its order of 31 March 1983 be rescinded in so far as the Court had ordered that the costs of the original hearing before Powell J. be paid by the Attorney-General. Miss Wentworth also applied on motion to the Court of Appeal seeking in effect that if that Court varied the order of 31 March 1983 so that the costs were no longer payable by the Attorney-General, then the costs should be paid by the Council or by Messrs. Kladis and, in the alternative, an order that any costs ordered to be paid by herself as relator be limited to the sum of $4,000, the amount specified in a bond which she had given to the Attorney-General on 8 August 1979. On 25 May 1983 a majority in the Court of Appeal (Hutley and Hope JJ.A.) held that the Court had no power to make the order for costs against the Attorney-General. They held that the order made against the Attorney-General should be set aside and that Miss Wentworth should be ordered to pay the whole of the costs of the proceedings and that the bond which she had given to the Attorney-General did not limit her liability for such costs. Mahoney J.A. inclined to the view that the Court had power to order costs against the Attorney-General and said that, assuming that there was power to do so, there was a substantial case for ordering the Attorney-General to bear some or all of the costs of the trial and perhaps of the appeal. However, since the majority of the Court was of the opinion that there was no power to order costs against the Attorney-General he did not decide whether, if there were a discretion, the Court should reverse what it had done.

From this decision also Miss Wentworth has appealed to this Court ( appeal No. 60/83). An objection to the competency of the appeal has been lodged. In the circumstances of the case, however, the Court considered it convenient to have the substance of the appeal argued without deciding the question of its competency.

Appeal No. 32/83 raises two questions. The first is whether it was right for the Court of Appeal to hold that further proceedings under order No. 3 of its order of 24 February 1981 would be a futility. Miss Wentworth now claims that the action of Messrs. Kladis in erecting the building as they did gave her a cause of action against them in negligence and nuisance and that the Council was also guilty of negligence in the manner in which it performed its functions. She claims that the fact that she no longer owns the house at Bellevue Hill is irrelevant since the question of her right to damages must be determined at the date at which the action was commenced. An insurmountable obstacle to the acceptance of Miss Wentworth's argument is, however, that no claims based on negligence or nuisance were made in the pleadings or otherwise in the proceedings before Powell J. or when the matter first came before the Court of Appeal and this Court. The action was, in its inception, a relator action brought by the Attorney-General. Such an action is brought to enforce a public right and in such an action the relator (unless she was joined as a plaintiff in her own right) could not make a claim for damages for negligence or nuisance. Miss Wentworth was substituted for the Attorney-General as plaintiff on the footing that she might have had a special interest in the subject of the action, being an interest over and above that enjoyed by the public generally: see Day v. Pinglen Pty. Ltd. [3] . If she had such a special interest, she would, on proof of her case, have been entitled to an injunction. It was also contemplated (wrongly as we now know) that she might obtain equitable damages under s. 68 of the Supreme Court Act in addition to or in lieu of an injunction. If she had sought to reform the action by adding claims based on negligence and nuisance it would have been necessary to amend the pleadings, but this was not done. When, thereafter, her house was sold, the consequence was that she could no longer successfully ask for an injunction or for a declaration since, except as to damages, the matter had then become a dead issue so far as she was concerned. When the matter came before this Court this was recognized by her counsel, Mr. Beaumont, who expressly confined his claim for relief to damages under s. 68. The Court, however, decided that s. 68 did not confer power to award damages for a breach of a public duty imposed by a statute unless the statute, according to its true construction, created a private right of action. This decision inevitably meant not only that the claim for damages for the alleged breach of cl. 43 must fail, but also that damages could not be awarded under s. 68 for the alleged breaches of s. 311 of the Local Government Act. The necessary consequence of the Court's decision was that Miss Wentworth could not obtain any damages in the action. Order No. 3 of the order of the Court of Appeal should have been set aside, but this Court did not take that course because of the failure of the respondents to cross-appeal. The Court of Appeal was therefore correct in concluding that further proceedings in the action would be futile and that order No. 3 should be set aside.

The second question that arises is whether the Court had power to set aside its previous order. Clearly, it had. Hutley J.A. held that Pt 42, r. 12(1) of the Supreme Court Rules N.S.W. would have authorized an order for a perpetual stay. That sub-rule provides:

A person bound by a judgment may move the Court for a stay of execution of the judgment, or for some other order, on the ground of matters occurring after the date on which the judgment takes effect and the Court may, on terms, make such order as the nature of the case requires. The view of Hutley J.A. would appear to be correct, but in any case the inherent power of the Court was sufficient to justify the order which was made. Of course the general principle is that there is no inherent power to set aside a judgment by reason of changed circumstances (Gamser v. Nominal Defendant [4] ) but the rule is subject to exceptions: see Bailey v. Marinoff [5] and The Supreme Court Practice 1982, (U.K.), 20/11/5, and cases there cited. It is unnecessary to attempt to discuss the various exceptional cases in which the rule does not apply. The order in question in the present case was not one by which the litigation was concluded; it was merely an order regulating the procedure to be followed in the future conduct of proceedings. It was an order which, if carried out, would ultimately result in a futility. The inherent power, where it exists, is not lightly to be exercised, but it extends to, and was properly exercised in, the present case. 1. (1977) 136 C.L.R. 145. 2. (1971) 125 C.L.R. 529, at pp. 531-532, 539-540.

Miss Wentworth invoked the old and basic principle that if a plaintiff has a right there must be a remedy if the right is infringed. It should be emphasized that in the present proceedings it has not been established that Miss Wentworth had a right which was infringed. Moreover, there is an important principle that a party is bound by his or her conduct of the proceedings. The relief which Miss Wentworth now seeks was never sought until after her appeal to this Court had been dismissed. It would be unjust to allow her at this stage of the action to amend the proceedings so as to reform the action quite radically.

For these reasons appeal No. 32/83 must be dismissed.

Appeal No. 60/83 requires us first to decide whether the Court of Appeal had jurisdiction to make an order for costs against the Attorney-General. At common law the Crown (including the Attorney-General when proceeding on behalf of the Crown) neither paid nor received costs: Robertson, Civil Proceedings by and against the Crown (1908), p. 613. In Chancery, the Attorney-General might, in some circumstances, receive costs: Robertson, op. cit., pp. 621-625. In these circumstances "One of the principal uses, if not the principal use, of a relator is that there should be some person or body who can be ordered to pay the costs in case the action is unsuccessful": Robertson, op. cit., p. 626. In Attorney-General v. Logan [6] , Wills J. said:

my notion of the theory of a proceeding by information is that when once the matter is in the hands of the Attorney General it becomes substantially a public proceeding, in which the Attorney General, if there be no relator, becomes as prosecutor responsible for the costs, while if a relator is introduced, the responsibility for costs is upon the latter. He recognized that the Attorney-General might possibly be liable for costs if the relator, being a statutory body, had exceeded its statutory authority in giving the information [7] . In the same case, Vaughan Williams J. said [8] : As I understand the practice, when the Attorney General proceeds at the relation of a private person or a corporation, he takes the proceeding as representing the Crown, and the Crown through the Attorney General is really a party to the litigation. It is quite true that when the proceeding is taken at the relation of a subject, the practice is to insert his name in the proceedings as the relator, and to make him responsible for the costs, but I do not think that this practice in any sense makes the relator a party to the proceedings, although he is responsible for the costs He went on to say that "the practice of making the relator directly responsible for the costs of the action had its origin not in the protection of the defendant but of the Crown." These passages appear to state the practice correctly: see also Stoke-on-Trent Council v. B & Q Ltd. [9] and Attorney-General (Q.); Ex rel. Duncan v. Andrews [10] . 1. [1891] 2 Q.B. 100, at p. 103. 2. [1891] 2 Q.B., at p. 104. 3. [1891] 2 Q.B., at p. 106. 4. [1984] A.C. 754, at p. 770. 5. (1979) 145 C.L.R. 573, at p. 582.

It is, however, unnecessary to consider under what circumstances, apart from statute, an Attorney-General suing at the relation of a private person might be made liable for costs. The position in New South Wales is now governed by statute. Paragraphs (a) and (b) of s. 76(1) of the Supreme Court Act 1970 N.S.W., as amended, provide that:

Subject to this Act and the rules and subject to any other Act -

(b) the Court shall have full power to determine by whom and to what extent costs are to be paid;

It would not be right to give that section a narrow interpretation and the argument submitted on behalf of the Attorney-General, that it does no more than change the rule that the costs follow the event, cannot be accepted. Section 76(1) confers a wide discretion on the Court to decide whether any and which party to proceedings shall pay costs to another party, and, if it binds the Crown, enables the Court to order the Crown, or the Attorney-General proceeding at the relation of a person or body, to pay the costs. By s. 3(1) of that Act it is provided: Subject to this and any other Act, the Crown is bound by, and has the benefit of, this Act and the rules. That sub-section evinces an unmistakable intention that the Act shall bind the Crown. It was submitted that the provisions of s. 3(1) do not render s. 76 binding on the Crown because the subject of the payment of costs by the Crown is already governed by s. 10 of the Claims against the Government and Crown Suits Act 1912 N.S.W.. That section deals with certain proceedings by or on behalf of the Crown in respect of property of the Crown or in respect of any money due to the Crown by virtue of any Act relating to the public revenue, and has no application to a proceeding such as the present. However it was held in the Court of Appeal that the words "subject to any other Act" in s. 3(1) are directed to preserving the operation of any Act which deals specially with the subject of costs payable by the Crown. It may be assumed that the provisions of s. 10 of the Claims against the Government and Crown Suits Act remain unaffected by the provisions of s. 76 of the Supreme Court Act, although it would seem that the effect of s. 76 would be to assimilate all proceedings to which the Crown is a party to those as between subject and subject. However, it would be giving undue weight to the opening words of s. 3 to give them the effect that if any statutory provision deals with the question of costs against the Crown, s. 76 can have no application even to matters to which such a statutory provision has no possible relation. The words of s. 3 and s. 76 should not be given a restrictive construction. The clear intention of s. 3 is to make the provisions of s. 76 prevail over any rule of the prerogative to the contrary. Section 76 gives power to the court to make an order for costs against the Attorney-General in a relator action if it is proper to do so. Such cases will no doubt be rare since the main purpose of having a relator is to make him or her answerable for the costs.

The final question for decision is whether it would be a proper exercise of the discretion conferred by s. 76 to make any and if so what order for costs against the Attorney-General in the present case. On the one hand, although the proceedings were brought to vindicate a public right, they were brought with the intention of benefiting Miss Wentworth. On the other hand, it seems highly likely that if the Attorney-General had not withdrawn his fiat much of the difficulty in the present case would not have arisen. If the Attorney-General had continued to be plaintiff the Court would have proceeded to decide whether there had been breaches of the Local Government Act and, if so, whether the case was properly one for the grant of an injunction. Such a decision might have obviated the need for further litigation. The Attorney-General is not to be criticized for his action in withdrawing his fiat since it was entirely within his discretion to do so. The decision of the present question is not an easy one; it might on the one hand be said that the Attorney-General should pay no costs at all, whereas on the other it might be said that he should pay some of the costs of the appellate proceedings as well as those incurred before Powell J. Of course, the Attorney-General is able to protect himself by obtaining appropriate security from the relator, but the bond obtained in the present case was carelessly drawn; it affords no protection to the Attorney-General, but equally it does not affect the liability of Miss Wentworth to the respondents. On the whole, the result originally reached by the Court of Appeal by its order of 31 March 1983 appears in the unusual circumstances of this case to have been a fair one, notwithstanding that Hope and Hutley JJ.A. subsequently expressed a different view. The Court of Appeal varied that order because it considered that it had no power to order the Attorney-General to pay the costs. Since it did possess the requisite power, the order should be restored.