SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: / Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) (No 2)
Citation: / [2017] ACTCA1
Hearing Date: / 11 February 2016
DecisionDate: / 17 January2017
Before: / RefshaugeACJ
Decision: / The applicant pay the respondent’s costs.
Catchwords: / CIVIL LAW – PRACTICEAND PROCEDURE –Costs– applied civil rules – public interest litigation – whether litigation is in the public interest – whether personal undertaking for security for costs created a manifest injustice – right to be heard – costs follow the event – applicant to pay the respondent’s costs –
r 1720 of the Court Procedures Rules 2006 (ACT)–
r 1721 of the Court Procedures Rules 2006 (ACT)
Legislation Cited: / Associations Incorporation Act 1991 (ACT)
Court Procedures Act 2004 (ACT), s 7, Sch 1, Item 26
Planning and Development Act 2007 (ACT), s 10
Court Procedures Rules 2006 (ACT), rr4, 210, 1720, 1721, 5001, 5405(2), Ch 2, Ch 5, Div 2.4.2
Cases Cited: / Adam P Brown Male Fashion Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Armstrong v Landmark Corporation Ltd [1967] 1 NSWR 13
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Blue Wedges Inc vMinister for the Environment, Heritage and the Arts [2008] FCA 8; 165 FCR 211
Buzzacott v Minister for Sustainability, Environment, Water, Population andCommunities (No 3) [2012] FCA 744
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; 173 LGERA 280
Challenger Property Asset Management Pty Ltd vStonnington City Council (No 2) [2012] VSC 67
Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ACTSC2
Concerned Citizens of Canberra Inc vChiefPlanning Executive (Planning and Land Authority) [2013] ACTSC 50
Concerned Citizens of Canberra Inc v Chief Planning Executive [2014] ACTSC 165; 205 LGERA 278
Concerned Citizens of Canberra Inc v Chief Planning Executive (Planning and Land Authority) [2014] ACTSC 24
Concerned Citizens of Canberra Inc vChief Executive (Planning and Land Authority) [2015] ACTCA 56; 214 LGERA 252
Cutler vWandsworth Stadium Ltd [1945] 1 All ER 103
Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; 176 LGERA 424
Director of Public Prosecutions v Dickfoss (No 2) [2011] NTSC 29
Engadine Area Traffic Action Group Inc vSutherland Shire Council (No 2) [2004] NSWLEC 434; 136 LGERA 365
Hooper v Port Stephens Council [2010] NSWCA 368
Jacka v Australian Capital Territory [2015] ACTSC 239
Kent v Cavanagh (1973) 1 ACTR 43
Kepert v West Australian Pearlers’ Association Inc (1926) 38CLR 507
Environmental Defence Society IncvTheNew Zealand King Salmon Company Ltd and Ors [2014] NZSC 167
London Association for the Protection of Trade vGreenlands Ltd [1916] 2 AC 15
Northern Inland Council fortheEnvironment Inc v Minister forthe Environment [2014] FCA 216
Oshlack v Richmond River Council (1998) 193 CLR 72; 96LGERA 173
Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637; 88 ALR 517
Ritter v Godfrey [1920] 2 KB 47
Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229
Save the Showground forSydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254
Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; 167LGERA 432
The Wilderness Society Inc v Turnbull, MinisterfortheEnvironmentand Water Resources [2007] FCA 1863; 98 ALD 651
Vucadinovic vLombardi [1967] VR 81
Wide Bay Conservation Council Inc v Burnett Water Pty Ltd
(No 9) [2011] FCA 661; 194 FCR 250
Texts: / G dal Pont, Law of Costs (LexisNexis Butterworths, 3rd ed, 2013)
Parties: / Concerned Citizens of Canberra Inc (Applicant)
Chief Planning Executive (Respondent)
Representation: / Counsel
No appearance(Applicant)
Mr P Garrisson SC(Respondent)
Solicitors
Goodman Law(Applicant)
ACT Government Solicitor(Respondent)
File Number: / ACTCA39 of 2014
Decision under appeal: / Court/Tribunal:Supreme Court of the Australian Capital Territory
Before:Mossop M
Date of Decision:4 July 2014
Case Title:Concerned Citizens of Canberra Inc vChief Planning Executive (Planning and Land Authority)
Citation:[2014] ACTSC 165

REFSHAUGE ACJ:

1.The applicant, Concerned Citizens of Canberra Inc, is an association incorporated under the Associations Incorporation Act 1991 (ACT). The respondent is a body corporate established under s 10 of the Planning and Development Act 2007 (ACT). That is to say, that section creates a body corporate which is the Planning and Land Authority and then provides that the Chief Planning Executive is the authority. Though they were respectively plaintiff and defendant in the proceedings from which the appeal is sought to be taken, I shall continue to refer to the parties as to the role they have taken in these proceedings, namely as applicant and respondent respectively.

2.In 2012, the applicant challenged in this Court a decision of the respondent to approve a development application for the construction of a mosque in Gungahlin, ACT. That challenge was dismissed in July 2014: Concerned Citizens of Canberra Inc vChiefPlanning Executive [2014] ACTSC 165; 205 LGERA 278 (the Third Decision).

3.The applicant then sought to appeal that decision, but failed to lodge a Notice ofAppeal within time. It applied for leave to appeal out-of-time. I dismissed the application on 6 November 2015: Concerned Citizens of Canberra Inc vChiefExecutive (Planning and Land Authority) [2015] ACTCA 56; 214 LGERA 252 (the Fourth Decision).

4.In doing so, I said at 289; [287]:

Subject to any contrary submissions, I consider that the applicant should pay the costs of its application and that there be no order as to costs of the Authority’s application.

5.Both parties filed submissions on costs. It is a matter of much regret that a period of sick leave followed by significant pressure of work in the Supreme Court and this Court has delayed this decision.

6.In my view, for the reasons set out below, the applicant must be ordered to pay the respondent’s costs.

Course of the Proceedings

7.In order to understand the applicant’s submissions, it is necessary to determine in some detail the course of these proceedings.

8.The original proceedings were commenced on 9 August 2012 by Originating Application by the applicant as plaintiff, being at that stage an unincorporated association before it was incorporated. I do not need to consider the procedural problems with that situation, as to which see London Association for the Protection ofTrade vGreenlands Ltd [1916] 2 AC 15. By the time the proceedings came to curial attention the association had been incorporated on 13 August 2012. It would appear that the voluntary, unincorporated association which sought the incorporation ceased to have any existence apart from the incorporated association on incorporation: Kepert vWest Australian Pearlers’ Association Inc (1926) 38 CLR 507 at 514.

9.In any event, the incorporated association became the plaintiff.

10.On 15 February 2013, the Court heard various interlocutory applications, two of which are mentioned in the submissions.

11.One of the mentioned applications was made by the applicant to join Mr Irwin Ross, then President of the applicant, as a second plaintiff to the proceedings. The other application was made by the defendant for security for costs.

12.It was submitted by the defendant that the joinder was being sought to circumvent the application for security as to costs, but also it was opposed on the grounds that MrRoss had no special interest that gave him standing to be a plaintiff and that it was too late to join him to the proceedings.

13.For reasons set out in its decision, Concerned Citizens of Canberra IncvChiefPlanning Executive (Planning and Land Authority) [2013] ACTSC 50 (the First Decision) at [58], the Supreme Court dismissed the application.

14.The second mentioned application was made for the defendant seeking security for costs. The applicant was ordered in the First Decision at [75] to provide security for costs.

15.The security was provided on 30 April 2013. By February 2014, however, the respondent’s costs had escalated and it sought additional security.On 13February 2014, Master Mossop ordered the applicant to provide further security by procuring a personal undertaking from Mr Ross that he would pay an amount up to $10 000 of any of the defendant’s costs ordered by the Court to be paid by the plaintiff,if required in addition to the amounts paid already by the plaintiff under the security already ordered. Mr Ross had offered to provide security in an affidavit he made and the plaintiff filed in the proceedings. See Concerned Citizens of Canberra Inc v Chief Planning Executive (Planning and Land Authority) [2014] ACTSC 24 (the Second Decision).

16.That undertaking was apparently given, for the proceedings were then heard in March 2014 and, in July 2014, the plaintiff’s claim was dismissed in the Third Decision, as noted above (at [2]).

17.Sometime later, the application for leave to appeal out of time was made and then heard. It was also dismissed: the Fourth Decision.

Costs generally

18.Section 7 of the Court Procedures Act 2004 (ACT) authorises the making of rules for the practice and procedure of ACT Courts, including matters specified in Sch 1 of that Act. Item 26 of that Schedule specifies costs as such a matter in civil proceedings.

19.The Court Procedures Rules 2006 (ACT), made under that section of that Act, makes provision in rr 1720 and 1721 for costs as follows:

1720 Costs - entitlement to recover

(1) A party to a proceeding cannot recover any costs of the proceeding from another party or anyone else otherwise than by agreement, under a territory law, or an order of the court under a territory law.

Note A territory lawincludes these rules (see Legislation Act, s 98).

1721Costs – general rule

(1)The costs of a proceeding or of an application in a proceeding are in the discretion of the court.

(2)The costs of the proceeding include the costs of an application in the proceeding, unless the court otherwise orders.

20.These rules appear in Pt 2.17 of Ch 2 of the Court Procedures Rules, which, by r4applies to all proceedings unless otherwise specified.

21.Rule 5001 of the Court Procedures Rulesdoes otherwise specify but does make certain exceptions. It is as follows:

5001 Appellate proceedings – applicationof ch 2 generally

(1) Except as provided by this rule or another rule in this chapter, chapter 2 (Civil proceedings generally) does not apply to an appellate proceeding.

(2) The applied civil rules apply, with any necessary changes, to anappellate proceeding that is a civil proceeding.

(3) In this rule:

applied civil rulesmeans the following:

  • rule 30 (Who may start and carry on a proceeding)
  • rule 72 (Originating process –solicitor’sstatement about filing)
  • division 2.4.3 (Changing parties)
  • division 2.4.4 (Included or changed parties–futureconduct ofproceedings)
  • division 2.4.9 (People with a legal disability)
  • part 2.9 (Preservation of rights and property)
  • part 2.10 (Offers of compromise)
  • part 2.16 (Judgment and other orders)
  • part 2.17 (Costs)
  • division 2.20.2 (Taking of accounts)
  • division 2.20.3 (Making of inquiries)
  • part 2.21 (Representation by solicitors)
  • part 2.22 (Miscellaneous –ch 2).

22.An appellate proceeding is defined in the Dictionary to the Court Procedures Rules as one to which Ch 5 applies. An application for leave to appeal out oftime, as made by the applicant, is made under r 5405(2), a provision within Ch 5. Thus, there can be no doubt that r 1721 of the Court Procedures Rulesapplies to these proceedings.

The Applicant’s Submissions

23.The applicant made two broad submissions as to why it should not be ordered to pay the respondent’s costs.

24.In the first place, it submitted that the proceedings were public interest proceedings and, by implication (though not expressed in its submissions), it should therefore not be ordered to pay costs.

25.In support of this submission, it noted that its constitution provided that it was a “public interest organisation” and that it did not seek to, nor would it, benefit from “the proceeds of litigation”. It submitted that:

No orders sought, and no ultimate utility of the application would have benefitted the Plaintiff which [is] a public interest body of itself with no commercial, financial or proprietary interest or benefit to be derived from the litigation.

26.It further submitted that:

Oshlack[Oshlack v Richmond River Council (1998) 193 CLR 72] is oft cited as authority for the proposition that costs follow the event in public interest matters. In answer, it is submitted that the capacity of the Court to hear a matter ought not be trammelled by the spectre of cost orders against them [sic] and be discouraged [sic] from making applications in the public interest for fear of generating a costs order. This is particularly so in matters of cause celebre where there is high public interest and matters of Territory and National importance.

27.This is some reflection of the comment of Fox J in Kent v Cavanagh (1973) 1 ACTR 43 at 55:

It seems to me undesirable that responsible citizens with a reasonable grievance who wish to challenge Government action should only be able to do so at risk of paying costs to the Government if they fail. They find themselves opposed to parties who are not personally at risk as to costs and have available to them almost unlimited public funds. The inhibiting effect of the risk of paying costs is excessive and not in the public interest. Once, not so long ago, litigation was more of a luxury than it now is and for the most part only wealthy people could engage in it.

28.Strangely, though this passage was cited by Master Mossop in the Second Decision, the applicant did not refer to it in its submissions.

29.The second argument advanced in the applicant’s submissions was that somehow in the circumstances the undertaking by Mr Ross created unfairness. I found much of the argument in this submission difficult to follow.

30.The submission seemed to be summed up in the following paragraph of the applicant’s submissions:

It is therefore submitted that to award costs in an environment where the Plaintiff presented itself squarely with the intention of galvanising assets of substance and represented in the person of prospective income Plaintiff Irwin Ross, that [sic] to now press costs against the Plaintiff where the Plaintiff volunteered to join Mr Ross as a Second Plaintiff and to have that joinder denied, places a limit on the costs against the Plaintiff by virtue of the effect of the Order denying that joinder.

31.Thus, it was submitted that Mr Ross would be bound by his undertaking to pay up to $10 000, assuming that it was not consumed by any costs payable under the orders of Master Mossop in the Third Decision.

32.The applicant submitted that Mr Ross was an interested party, a concept not further explained in the context of this litigation, and that, despite the denial of the joinder of him as a second plaintiff, he had somehow become a “necessary party”, a reference to r 210 of the Court Procedures Rules. I note that this rule appears in Div 2.4.2 of these Rules and is, therefore, not one of the “applied civil rules”, identified above (at [21]), that applies to these proceedings.

33.The applicant submitted that, although the costs order in the Fourth Decision was madeagainst the applicant as a party, Mr Ross may be called upon to honour his undertaking. I make no comment about whether that is likely or required either in fact or law. The applicant complains of Mr Ross’ possible liability despite him being “expressly denied by Court order to be a party to these proceedings”. That, it was submitted, created“a manifest injustice”.

34.Indeed, it was said that this was “a serious breach of judicial power” in denying “a person directly affected and by name affected by a Court order that was denied standing in the proceedings” and it was asserted that Mr Ross was also precluded from “making submissions while the subject of a Court Order that binds him”.

35.Given the actual submissions made by the applicant, the following comment in its submissions was at least curious if not disingenuous, namely:

In light of the unfortunate effect of the combination of Court Orders made, it is submitted that MrRoss is at the mercy of the Plaintiff who elects, again on instruction, that they [sic] will take no action in answering His Honour’s call at [287] of the 6 November 2015 judgment, thus damnifying his undertaking to the mercy of a final Costs Order which will be drawn in part from the full amount of his undertaking to this Court without standing to defend against such a final Costs Order.

36.If, as seems implied in it,this submission is not a submission made by the applicant in accordance with my invitation for submission as noted above (at [4]), then its content and robust defence of Mr Ross must mean that it is a submission by Mr Ross or on his behalf. Thus, the complaint that he is not being heard is incorrect.

37.If, on the other hand, it is a submission by the applicant, then it is entirely untrue and probably dissembling to suggest that the applicant (the plaintiff in the Supreme Court proceedings) on instructions has taken “no action in answering” my invitation for submissions for costs. Further, such submissions clearly show from their content that they allowed Mr Ross to make his case.

38.The applicant and Mr Ross cannot have it both ways.

39.There was, in the submissions, further emphatic reliance on r 210 of the Court Procedures Rules which, as noted above (at [32]), simply does not apply to these proceedings.

Consideration

40.Neither argument made by the applicants seems to me to withstand scrutiny.

41.The usual order is that the successful party in litigation should have his, her or its costs. This approach has a long history. In Ritter v Godfrey [1920] 2 KB 47 at 52-3, LordSterndale MR said:

[T]here is such a settled practice of the Courts that in the absence of special circumstances a successful litigant should receive his costs, that it is necessary to show some ground for exercising a discretion by refusing an order which would give them to him.

42.This approach has been followed in Australia for many years: Vucadinovic vLombardi [1967] VR 81 at 87; Armstrong v Landmark Corporation Ltd [1967] 1 NSWR 13 at 15.

43.Despite the emphasis given by Gaudron and Gummow JJ in Oshlack v Richmond River Council(1998) 193 CLR 72 at 86-9; [36]-[45], that general provisions which give a discretion as to costs should not be construed narrowly and that rules of practice should not become rules of law, the general practice remains a significant basis as, at least, a starting point for the consideration.

44.That does not seem to require a party seeking a different rule to discharge an onus but rather that the Court must be satisfied that there are proper reasons for the order to be made.

45.The ground here put forward is that the litigation was what the applicant described as “public interest” litigation. Of such litigation, I said in Jacka v Australian Capital Territory [2015] ACTSC 239 at [12]-[14]:

12.... public interest litigation, where other considerations apply and which justify a departure from the general rule.

13.Nevertheless, as Kirby J pointed out in Oshlack v Richmond River Council at 123; [134]:

Courts, whilst sometimes taking the legitimate pursuit of public interest into account, have also emphasised, rightly in my view, that litigants espousing the public interest are not thereby granted an immunity from costs or a ‘free kick’ in litigation.(footnoteomitted)

14.Thus, in many cases of claimed ‘public interest litigation’ the courts have still made the ‘usual order’ that costs follow the event: Qantas Airways Ltd v Cameron(No 3) (1996) 68 FCR 387 at 389; Friends of Hinchinbrook Society Inc v Minister for Environment(No 5) (1998) 84 FCR 186 at 188-9; Ruddock v Vadarlis(No 2) (2001) 115 FCR 229 at 237: [18]; Animals’ Angels e.V. v The Secretary Department of Agriculture (2014) 228 FCR 35 at 74; [131]-[132].