Carlene Randall v City of Canada Bay Council (No 5) [2015] NSWSC 1841

Supreme Court New South Wales

Medium Neutral Citation: Carlene Randall v City of Canada Bay Council (No 5) [2015] NSWSC 1841 Hearing dates: 3 December 2015 Date of orders: 03 December 2015 Decision date: 03 December 2015 Jurisdiction: Equity Before: Kunc J Decision: Plaintiff to pay the defendant's costs of the proceedings Catchwords: COSTS – No issue of principle Cases Cited: Carlene Randall v City of Canada Bay Council(No 4) [2015] NSWSC 1759 Category: Costs Parties: Carlene Randall (Plaintiff) City of Canada Bay Council (Defendant) Representation: F. Agresta (by leave for the Plaintiff by phone link)

Counsel: P.T. Newton (Defendant)

Solicitors: Mills Oakley Lawyers (Defendant) File Number(s): 2013/5606 Publication restriction: No

EX TEMPORE Judgment 1. Judgment was delivered in these proceedings on 25 November 2015 (Carlene Randall v City of Canada Bay Council (No 4) [2015] NSWSC 1759) (the "Principal Judgment"). All defined terms in the Principal Judgment have the same meaning in this judgment. These reasons should be read in conjunction with the Principal Judgment. 2. At the conclusion of the Principal Judgment I indicated that the decision of the Court was that the amended statement of claim would be dismissed. The Council applied for its costs of the proceedings against Ms Randall. It indicated through its counsel that it did not propose to press a foreshadowed application for costs against Mr Agresta, Ms Randall's husband who had conducted the proceedings on her behalf by leave. I adjourned the proceedings to today to enable Mr Agresta to prepare to resist the costs application against Ms Randall. 3. The Council's submissions were straightforward. The Council had achieved a complete victory in the proceedings with the exception of one issue where I had found that Ms Randall had standing to bring the proceedings under UCPR Pt 36 r 36.15 and the inherent jurisdiction of the Court. Notwithstanding success on that issue, Ms Randall completely failed to obtain any of the relief which had been sought in the amended statement of claim. In those circumstances it was submitted for the Council that costs should follow the event, with the result that Ms Randall should be ordered to pay the Council's costs of the proceedings. 4. In response, Mr Agresta made three submissions on behalf of Ms Randall. 5. First, Mr Agresta drew attention to the fact that, on behalf of Ms Randall, he had foreshadowed that a notice of motion would be filed seeking relief under UCPR Pt 36 r 36.16(3)(a) to the effect that the Principal Judgment should be set aside. The basis of that application, as I understand it at the moment, will be that the Principal Judgment suffers from fatal misapprehensions both as to the facts and the law. Mr Agresta submitted that, given that notice of motion had been foreshadowed, it would be more appropriate to deal with the costs of these proceedings after the outcome of that motion was known. This was because if that notice of motion succeeded, then any costs orders made today would have to be undone. 6. Second, Mr Agresta submitted that if costs were to be awarded to the Council, those costs should not relate to issues upon which the Council had lost. One example was the standing question but there were a number of subsidiary arguments to which Mr Agresta made reference that had been made by the Council but which had either not been successful or upon which the Court had not found it necessary to rule. 7. Third, Mr Agresta submitted that no inference should be drawn that Ms Randall accepted the Principal Judgment. It was to be understood, and is clearly understood, by the Court that Ms Randall disagrees with the Principal Judgment. 8. None of the three reasons advanced by Mr Agresta on behalf of Ms Randall justifies the Court departing from the usual rule, namely that costs should follow the event. 9. Insofar as the foreshadowed notice of motion is concerned it is appropriate that final orders be made in these proceedings before that motion is entertained. If that motion is successful then, as part of the consequences of success on that motion, the costs order which I will make today will have to be revisited. There is nothing unusual about that. It is, however, important that finality be achieved in relation to the Principal Judgment before any consideration of the foreshadowed notice of motion takes place. 10. In so far as it is suggested that the Council should not get its costs of issues upon which it lost, it is true that in some cases the Court is able to make a division between issues that have been won and issues that have been lost so as to make an order that only a proportion of costs are payable. This is not such a case. The issues upon which the Council lost or with which it was not necessary for the Court to deal, were integrally tied up with the many issues raised on behalf of Ms Randall, most of which received detailed consideration in the Principal Judgment. 11. The ordinary approach to costs is to look at the proceedings as a whole. That is why the usual order requires costs to follow the event. The event in this case is the dismissal of the amended statement of claim. That gives formal effect to the, in practical terms, complete failure of the proceedings brought by Ms Randall. This is not a case where it would be appropriate to attempt to apportion costs by reference to issues on which the Council had not been successful or which had not been required to be considered by the Court. 12. Finally, while the Court understands that Ms Randall does not agree with the outcome, that is not a reason to defer making the costs order which, in the exercise of its discretion, the Court considers to be appropriate. 13. For these reasons, and to give effect to the Principal Judgment, I will, after hearing from Mr Agresta about the foreshadowed notice of motion, make orders dismissing the amended statement of claim and for the plaintiff to pay the defendant'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: 03 December 2015