Land and Environment Court New South Wales Medium Neutral Citation: Bowers v Northern Beaches Council and Anor (No 2) [2022] NSWLEC 46 Hearing dates: On the papers Date of orders: 29 April 2022 Decision date: 29 April 2022 Jurisdiction: Class 4 Before: Robson J Decision: See orders at [40] Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Land and Environment Court — Whether proceedings brought in public interest — Whether applicant should bear more than one set of costs — Costs of substantive proceedings Legislation Cited: Civil Procedure Act 2005 (NSW), ss 11, 98 Land and Environment Court Rules 2007 (NSW), r 4.2 Uniform Civil Procedure Rules 2005 (NSW), Sch 2, rr 1.7, 42.1 Cases Cited: Boomerang & Blueys Residents Group Inc v New South Wales Minister for Environment, Heritage and Local Government and MidCoast Council (No 3) [2020] NSWLEC 150 Bowers v Northern Beaches Council [2022] NSWLEC 8 Bowers v Northern Beaches Council (No 3) [2022] NSWLEC 47 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 In the matter of Reed Constructions Australia Pty Ltd (in Liquidation) – Walley v Chubb Insurance Australia Ltd [2019] NSWSC 1007; (2019) 372 ALR 684 Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162 Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 372 ALR 695 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Statham v Shepard (No 2) (1974) 23 FLR 244 Category: Costs Parties: James Bowers (Applicant) Northern Beaches Council (First Respondent) Grigull Custodian Pty Ltd (Second Respondent) Representation: Counsel: J Bowers, self-represented (Applicant) L F Sims (First Respondent) M F Fozzard (Second Respondent) Solicitors: Self-represented (Applicant) Wilshire Webb Staunton Beattie Lawyers (First Respondent) DG Briggs and Associates (Second Respondent) File Number(s): 2021/00090937 Publication restriction: Nil Judgment 1. On 9 February 2022, I delivered judgment in these Class 4 judicial review proceedings dismissing the applicant's summons and reserving costs: Bowers v Northern Beaches Council [2022] NSWLEC 8 ('primary judgment'). I adopt the background facts, findings and definitions in that judgment. 2. This judgment concerns the costs of the primary proceedings. In a separate judgment delivered today (Bowers v Northern Beaches Council (No 3) [2022] NSWLEC 47), I deal with a notice of motion filed by Mr Bowers on 24 February 2022 seeking, inter alia, leave to reopen the primary proceedings. 3. At [58] of the primary judgment, I gave directions for the provision of short written submissions in relation to costs which I stated I would determine on the papers. 4. On 9 February 2022, prior to handing down the primary judgment, the Court received an email from Mr Bowers which stated: "5 If I am unsuccessful I rely on the public interest exception to the costs follow the event rule so that each party should pay its own costs. I also note that the Council was very late with its bundle of documents; indeed the plan of management was handed up at the start of the trial. And the 2nd respondent was very late with its list of objections. Neither respondent filed an affidavit(s) so I was running blind so to speak – my recollection is that neither respondent indicated that they would not be putting on affidavit evidence. As a public authority and model litigant my submission is the Council should have put on affidavit(s)." 1. On 22 February 2022, Council and Grigull Custodian each provided short written submissions in relation to costs of the substantive hearing. 2. On 24 February 2022, Mr Bowers filed a notice of motion seeking the following relief: "ORDERS SOUGHT For an order pursuant to rule 36.16(1) that the order and judgment dated 9 February 2022 be varied so as to provide for: 1. For leave to re-open my case. 2. Orders as per summons and points of claim. 3. Alternatively, a stay on the substantive costs order pending appeal to NSWCA. 4. Costs." 1. The notice of motion seeking leave to reopen the primary proceedings was listed for directions before me on 11 March 2022. On that occasion, Mr Bowers appeared for himself, Ms C Rose, solicitor, appeared for Council and Mr M F Fozzard of counsel, appeared for Grigull Custodian. At that directions hearing, Mr Bowers informed the Court that he no longer sought Order (3) in the notice of motion filed 24 February 2022 and I gave leave for Order (3) to be deleted. Mr Bowers also informed the Court that he relied upon the material in his email dated 9 February 2022 as his submissions in relation to costs of the primary proceedings. He further informed the Court that a Notice of Intention to Appeal to the New South Wales Court of Appeal from the primary judgment had been filed on 7 March 2022. 2. In an email to my associate (in chambers) on 12 April 2022 (which primarily related to the notice of motion filed by Mr Bowers on 24 February 2022 which was listed for hearing on that day), Mr Bowers stated: "… In relation to the costs of the substantive proceedings my submissions in chief are contained in an email from me to His Honour's Associate and both respondents dated 9 February 2022. Only paragraph number 5 is relevant as the first 4 paras assumed I was successful in the substantive proceedings. I will not bore your Honour rotten with submissions in reply on the exercise of your Honour's discretion on costs in public interest cases as I know you know them like the back of your hand. The fact is that Gerd Gri[g]ull the directing mind and will/alter ego of Grigull Custodian P/L has resided at the subject premises illegally since 2017 an[d] carried out illegal building works viz a shower recess. Gerd Grigull was never a caretaker of the subject premises - he just likes to 'live above the shop' so to speak. …" 1. For completeness, I note that further email correspondence was received from Mr Bowers. 2. In an email to my associate (in chambers) on 21 April 2022, Mr Bowers stated: "… I did my substantive costs submissions in chief by email dated 9 February 2022. The respondents filed their substantive costs submissions in chief on 22 February 2022. I did my substantive costs submissions in reply and my s;ubmissions [sic] on the costs of my notice of motion on 12 April 2022. Prior to me filing my notice of motion His Honour indicated on 10 February 2022 that he may decide the substantive costs "on the papers". Obviously my notice of motion has got in the way of that. Obviously it is a matter for His Honour but speaking for myself I am not a big fan of "on the papers" justice and nor was Sir Harry Gibbs – see his article Appellate advocacy 1986 60 ALJ 496 at 497 which refers to the importance of oral addresses to "iron out" any misunderstandings and doubts which may arise from the written submissions. I would welcome the opportunity to address His Honour briefly on substantive costs and costs of my notice of motion. …" 1. In a further email to my associate (in chambers) on 27 April 2022, Mr Bowers stated: "… Could you please give a date when the costs decisions on the substantive costs, including the costs of the trial which finished before lunch on day 1 and the costs of my notice of motion which was listed for 1 hour. We are now in the very unusual situation where the costs decisions are taking longer than the substantive judgment. Magna Carta: Justice delayed is justice denied. …" Mr Bowers' position 1. Mr Bowers' position in relation to costs is that which is set out in his emails noted above, and although short, may be summarised as follows. First, Mr Bowers relies upon the "public interest exception to the costs follow the event rule"; second, Mr Bowers submits that Council and Grigull Custodian were both late with the provision of their documentation and evidence; and third, that neither respondent filed any affidavits such that Mr Bowers was, to adopt his expression, "running blind" in relation to the conduct of the substantive hearing. Further, in relation to Council, Mr Bowers submits that as a public authority and model litigant, it should have placed affidavit evidence before the Court. Mr Bowers also expresses his concern, as he did at the substantive hearing, that a principal of Grigull Custodian has illegally resided at the premises since 2017. Council's position 1. Council accepts that the appropriate role of the decision-maker in judicial review proceedings is governed by the principles identified in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36; [1980] HCA 13 ('Hardiman'); Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 ('Oshlack') at [12] per Gaudron, Gummow JJ; and further considered by Basten JA in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162 ('Murlan Consulting') at [80]-[81]. 2. Council submits that, despite these principles, in the circumstances where the grounds relied upon by Mr Bowers in these proceedings were that Council's decision to grant development consent was affected by fraud or bad faith, and that the development the subject of the development consent is prohibited, this case is exceptional because the allegations of fraud or bad faith relate to Council's actual exercise of its statutory functions in the assessment and determination of the development application and also its role in relation to compliance with, and enforcement of, planning laws (noting that allegations of fraud were also made against Grigull Custodian and/or its director). 3. Council submits that, considering the comments of the Court of Appeal in McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 ('McGovern') where a suggestion of improper conduct on the part of a decision-maker was such that it was appropriate for the council in that case to take an active role in the defence of councillors or officers in circumstances analogous to the present case, Council properly conducted itself and is entitled to its costs. 4. In relation to the second ground in these proceedings regarding prohibited development, Council submits that it appropriately confined its presentation to no more than identifying the appropriate legal principles (in accordance with the principle that it would not conduct itself in a manner which may raise an issue of impartiality in the event that it was required to redetermine the development application). 5. As to whether there should be more than one set of costs ordered, Council acknowledges the general rule applicable to circumstances regarding respondents between whom no conflict of interest could arise in the presentation of their cases, however submits that, in the present circumstances, it would have been inappropriate for the respondents to be jointly represented as this could create an apprehension of bias if Council was later required to redetermine the development application. Again, this was particularly so where "different allegations of fraud or bad faith" were made against each of Council and Grigull Custodian in circumstances where the general rule, that more than one set of costs would not be allowed, should not apply. Grigull Custodian's position 1. Grigull Custodian seeks its costs on an indemnity basis because Mr Bowers made allegations of fraud which were serious and unsupported by any probative or relevant evidence of any conduct which could disclose any wrongdoing that could amount to fraud; "lacked a proper reasonable basis", where the two bases, of fraud and intention to use the premises in breach of any development consent, lacked foundation; the allegations were made in circumstances where Mr Bowers is a legally qualified solicitor and because of his training, knowledge, and understanding, could be inferred to have appreciated the seriousness of an allegation of fraud; and where these proceedings could not be considered to have been brought in the public interest because they do not advance or contribute to the understanding of the law nor are they brought to protect the environment. Consideration 1. The power of the Court to make orders as to costs is provided for in s 98(1) of the Civil Procedure Act 2005 (NSW) ('CP Act'), which states: (1) Subject to rules of court and to this or any other Act— (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. 1. The general rule is that costs follow the event, as set out in r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') as follows: Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. 1. I also note that r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) ('Court Rules'), which applies to proceedings in Class 4 of the Court's jurisdiction, states as follows: (1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest. 1. Pursuant to s 11 of the CP Act and r 1.7 and Sch 2 of the UCPR, the Court Rules prevail over the UCPR only to the extent of any inconsistency between them. Briefly stated, the Court preserves its discretion to make an order other than the "costs follow the event" if it considers it appropriate to do so. 2. For the reasons that follow, I consider it is appropriate that the respondents are each entitled to an award of a proportion of their costs. 3. Contrary to Mr Bowers' first submission, I do not consider that this litigation can be properly characterised as having been brought in the public interest. 4. While there is no doubt that the enforcement of public obligations and the correct application of environmental laws has a prima facie public character, even if these proceedings could be properly described as in the public interest, such simple characterisation of litigation is too crude a criterion to enable the Court to differentiate between various matters that could be characterised as being brought in the public interest: Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 at [15]; Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 at [21]. 5. In relation to Mr Bowers' second submission which related to Council's conduct in the preparation of its evidence and the provision of documentation (and a suggestion that neither respondent filed affidavits), I do not consider in all the circumstances (as summarised in the primary judgment), that the conduct of either respondent was such as to raise matters that could be equated with some form of disentitling conduct (although I note that is not the required test) such as to, apart from other reasons, affect the application of the usual rule that costs should follow the event. 6. Further, as noted above in my summary of the respondents' positions, Mr Bowers' arguments (and evidence) were such that, even considering that he submits that he has not received legal advice (which Mr Bowers confirmed in an email to my associate of 2 February 2022), and despite the fact that he is legally qualified, the nature and manner of the pleading (and further articulation) of his claims, would have made the marshalling of appropriate and responsive evidence not without some difficulty. 7. In relation to Mr Bowers' submission in relation to Council being a public authority and therefore subject to conduct of a "model litigant", I do not consider that Council's conduct was such as to indicate, as I have noted above, any form of conduct that could be described as inappropriate or disentitling. As I noted in the primary judgment at [13], Mr Bowers read his two affidavits and Council tendered a bundle of documents containing extracts from Council's file including documents relating to Council's consideration of the development application (which included records of attendances, internal Council consideration and assessments, material and objections received after public notification of the proposal, and various correspondence from Mr Bowers in which he recorded concerns in relation to the conduct on the subject premises and his concerns regarding Council's conduct in relation to the consideration of the issues he raised). In these circumstances, I consider that Council marshalled and provided appropriate evidence to successfully meet the claims made by Mr Bowers. Although Mr Bowers may have some legitimate concern in relation to the timing of the provision of certain material, I do not consider that this, in all the circumstances of the case, could be in any way determinative of an application for costs when the respondents have enjoyed success in the proceedings. 8. Although conscious that Mr Bowers did not appear with legal representation in the proceedings (however, as I have noted on a number of occasions, he has legal qualifications and has practised as a solicitor for many years), I accept that Mr Bowers, in his summons and in his submissions (at [19] of the primary judgment), maintained consistently that the proceedings raised a "very serious fraud case" and made serious allegations against both respondents. 9. In the above circumstances, despite the appropriate role of a decision-maker in judicial review proceedings being well understood (Hardiman at 35-36; Oshlack at [12]), I am of the view that there is weight in Council's position. I accept that the first ground involved allegations of fraud and bad faith in relation to Council's exercise of its functions and that Council was both a proper party and indeed a proper participant in these proceedings. In relation to the second ground, although Council did play a lesser role in the substantive hearing of that ground, as considered below, there was no realistic conflict of interest in the presentation of the respondents' cases such that there was a community of interest on this ground: McGovern at [226]-[228]. 10. Apart from this last matter, and subject to matters below, I consider that Council is entitled to an award of its costs. 11. In relation to Grigull Custodian, I accept that Mr Bowers made serious allegations of fraud which, ultimately, were not supported by probative evidence; and, as submitted by Grigull Custodian, were unlikely to have a reasonable basis and I accept, as I have noted both above and in the primary judgment, that the making of an allegation of fraud is particularly serious in circumstances where Mr Bowers is a qualified solicitor (albeit without a current Practicing Certificate). Grigull Custodian was clearly an appropriate respondent as it is the owner of the property with the benefit of the development consent the subject of these proceedings. 12. Having closely considered the submissions of all the parties, and accepting that despite the criticisms made by the respondents in relation to the inadequacy of Mr Bowers' pleading, in the circumstances of the seriousness of the allegations (in relation to both fraud and bad faith), Mr Bowers did have an understandable concern in relation to the conduct of persons and/or parties who may have been occupying the premises unlawfully for a period of time. While I accept that the respondents have enjoyed success in the proceedings and are prima facie entitled to their costs, my concern is whether Mr Bowers should be ordered to pay the costs of both respondents. 13. Although there have been a number of authorities relevant to this question which understandably turn upon their own facts, in general, more than one set of costs will not be awarded to respondents between whom no conflict of interest could arise in the presentation of their cases. In Statham v Shepard (No 2) (1974) 23 FLR 244 ('Statham (No 2)') at 246-247, Woodward J stated: "The principle which I deduce from these authorities, and which I believe I should follow in spite of the two cases earlier cited, is that the court will not normally allow two sets of costs to defendants where there is no possible conflict of interest between them in the presentation of their cases. I would add to this basic proposition three provisoes. In the first place, if a conflict of interest appears possible but unlikely, the defendants should make any necessary inquiries from the plaintiff as to the way in which his case is to be put if this would resolve the possibility of conflict between defendants. Secondly, there could be circumstances in which, although the defendants were united in their opposition to the plaintiff, their relationship to each other might be such that they would be acting reasonably in remaining at arm's length during the general course of litigation. Thirdly, even if defendants are acting reasonably in maintaining separate representation for some time or for some purposes, they may still be deprived of part of their costs if they act unreasonably by duplicating costs on any particular matter or at any particular time. Bearing in mind these principles, it becomes necessary to inquire first whether there was any possible conflict of interest in the present case." 1. The principle was considered more recently in Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 at [20]-[22] in the following terms: "…In Statham v Shepard (No 2) (1974) 23 FLR 244 at 246, Woodward J stated the general principle that, subject to certain provisos, "the court will not normally allow two sets of costs to defendants where there is no possible conflict of interest between them in the presentation of their cases". That principle has regularly been applied in this Court, including for example in Taylor v Owners - Strata Plan No 11564 (No 2) [2013] NSWCA 153 at [6] and HP Mercantile Pty Ltd v Hartnett [2017] NSWCA 79 at [8]. It is applicable to the present case. As Hodgson JA explained in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]: 'underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs.' In HP Mercantile Pty Ltd v Hartnett at [14] this Court said that: 'the ultimate question is not (as the respondents submit) whether they have acted reasonably, nor whether there has shown to be duplication. The question is whether it is reasonable for the unsuccessful litigant to bear more than one set of costs.'" 1. The essential question is whether it is reasonable for Mr Bowers, the unsuccessful applicant, to bear the entirety of both respondents' costs. This question in my view turns on whether there is "no possible conflict of interest between them and the presentation of their cases": Statham (No 2) at 246; In the matter of Reed Constructions Australia Pty Ltd (in Liquidation) – Walley v Chubb Insurance Australia Ltd [2019] NSWSC 1007; (2019) 372 ALR 684 at [48]; Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 372 ALR 695 at [207]; Boomerang & Blueys Residents Group Inc v New South Wales Minister for Environment, Heritage and Local Government and MidCoast Council (No 3) [2020] NSWLEC 150 at [116]-[126]. 2. Accepting that both Council and Grigull Custodian were necessary parties to the litigation and that each sought to defend serious challenges made in relation to their conduct, particularly the decision-making of Council, it is clear that the interests of both respondents nonetheless overlapped to some extent in the sense that they both sought to uphold the granting of the development consent. While I accept, as discussed in various authorities, Council's concern that it maintains an impartiality, I consider that there was clearly an overlap in relation to the second ground, however, given the serious nature of the allegations in the first ground, any overlap, was much less clear. 3. In all the above circumstances, and in particular taking into account that Mr Bowers has not enjoyed success in either aspect of his claim, as there was a limited community of interest at least in relation to maintaining the validity of the development consent, I do not consider that it is reasonable for Mr Bowers to bear the entirety of both respondents' costs. Doing the best I can, and conscious that as a matter of principle, the Court would not usually apportion costs between issues (which usually is between a plaintiff and a defendant) but acts on the outcome of proceedings as a whole without attempting to differentiate issues on which one or other party may have succeeded, I consider that the circumstances are such that each of the successful parties is entitled to 75% of its costs. 4. For clarity, I repeat that I have dealt discretely with Mr Bowers' notice of motion filed 24 February 2022 seeking leave to reopen the proceedings in Bowers v Northern Beaches Council (No 3) [2022] NSWLEC 47. Orders 1. The orders of the Court are: 1. The applicant, James Bowers, is to pay: 1. 75% of Northern Beaches Council's costs of the proceedings; and 2. 75% of Grigull Custodian Pty Ltd's costs of the proceedings. ********** 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: 29 April 2022