J. K. Williams Staff Pty Ltd v Sydney Water Corporation (No 2) [2020] NSWSC 336

Supreme Court New South Wales

Medium Neutral Citation: J. K. Williams Staff Pty Ltd v Sydney Water Corporation (No 2) [2020] NSWSC 336 Hearing dates: On the papers Date of orders: 01 April 2020 Decision date: 01 April 2020 Jurisdiction: Equity - Applications List Before: Robb J Decision: Order that the costs of the transfer application be the parties' costs in the cause. Catchwords: COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs in the cause Legislation Cited: Civil Procedure Act 2005 (NSW) Land and Environment Court Rules 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: J.K. Williams Staff Pty Ltd v Sydney Water Corporation [2020] NSWSC 220 Category: Costs Parties: J.K. Williams Staff Pty Limited (plaintiff / applicant) Sydney Water Corporation (defendant / respondent) Representation: Counsel: W G Muddle SC (plaintiff / applicant) S Donaldson SC / S Glascott (defendant / respondent)

Solicitors: Holman Webb Lawyers (plaintiff / applicant) Makinson d'Apice Lawyers (defendant / respondent) File Number(s): 2017 / 193481

Judgment 1. The Court delivered the principal judgment in this matter on 12 March 2020: J.K. Williams Staff Pty Ltd v Sydney Water Corporation [2020] NSWSC 220. 2. When the judgment was delivered, the Court made the following order: Order that, pursuant to section 149B(2) of the Civil Procedure Act 2005 (NSW), these proceedings be transferred to the Land and Environment Court to be heard and determined together with Land and Environment Court Proceedings No 2019/296280. 1. The Court also informed the parties that, as sought by the plaintiff in its notice of motion, it would make an order that the costs of the application be the parties' costs in the cause. Had that order been made, the effect would have been that the costs of the application would have been payable by the unsuccessful party in the Land and Environment Court (LEC). 2. As I had not given the defendant a full opportunity to make submissions on the issue of costs, I granted a request by the defendant that the Court not make the proposed costs order and that it give the defendant an opportunity to submit to the Court that a different costs order should be made. 3. The Court has now received written submissions from the parties on the issue of costs. 4. The defendant submitted that the Court should make the following costs orders: 1. Order that the plaintiff pay the defendant's costs of the application; and 2. Order that the order transferring the proceedings be conditional upon the plaintiff giving an undertaking to submit to any order made by the LEC as to any costs thrown away by the transfer of these proceedings. 1. The plaintiff changed its position in its costs submissions and submitted that the Court should make an order that the defendant pay its costs of the application. That submission was primarily put on the basis that the plaintiff was wholly successful on the application and there was no reason why costs should not follow the event: see Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.1. 2. Dealing with the plaintiff's submission first, I would not make that order for three reasons. 3. First, the order now sought is inconsistent with the order sought by the plaintiff in its notice of motion. The notice of motion was resisted by the defendant in circumstances where the costs order sought by the plaintiff was that the costs of the application be the parties' costs in the cause. The plaintiff should not be permitted to depart from the relief sought in its notice of motion after judgment has been given. In any event, the plaintiff did not apply for leave to amend its notice of motion. 4. Secondly, in the terms of UCPR r 42.1, it appears to me that some other order should be made than that the costs follow the event. The LEC has exclusive jurisdiction to determine the issues raised by the plaintiff's claim in that Court. Consequently, the delay of the plaintiff in commencing the proceedings in that Court, and making the present application for the transfer of the proceedings that it earlier commenced in this Court, has not been the cause of the plaintiff's need to make this application. However, I consider that the plaintiff ought reasonably to have commenced the proceedings in the LEC at about the same time as it commenced the proceedings in this Court. Not only the relevant environmental legislation, but also the environmental regulatory provisions that govern the defendant's operations, such as its licenses, are publicly available. The plaintiff, acting reasonably, ought to have known that the most effective relief available to it was within the exclusive jurisdiction of the LEC. 5. The fact that the plaintiff prosecuted the proceedings in this Court for as long as it has done will have had the consequence of focusing the defendant's preparation on the issues raised by these proceedings, and created a reasonable expectation on the part of the defendant that the plaintiff's claim would be determined in this Court. In my view, that circumstance enhanced the reasonableness of the defendant seeking to preserve the proceedings in this Court. The defendant advised the Court on the hearing of the application that it accepted that the two proceedings should be dealt with by the one Court, and it would consent to the LEC making an order transferring the proceedings before that Court to this Court. In these circumstances it was reasonable for the defendant to attempt to resist the transfer of the proceedings in this Court. 6. Thirdly, before this Court can make a transfer order under s 149B(2) of the Civil Procedure Act 2005 (NSW) (CPA), it must be satisfied that the proceedings pending in the LEC are "related proceedings" to the proceedings in this Court and that "it is more appropriate for the proceedings" in this Court to be heard together with the related proceedings in the LEC. These criteria require the Court to exercise judgment, and it will often be reasonable and helpful to this Court to have a contradictor to the applicant for the making of a transfer order. I am satisfied that it was reasonable in this case for the defendant to have acted as contradictor. 7. Accordingly, it will not be appropriate for the Court to make an order that the defendant pay the plaintiff's costs of the application. 8. I turn now to a consideration of the costs orders sought by the defendant. 9. First, I do not consider that the appropriate costs order is that the plaintiff pay the defendant's costs of the application. 10. The defendant was unsuccessful in its resistance to the plaintiff's transfer application. UCPR r 42.1 militates against the making of an order that the successful party pay the costs of the unsuccessful party, although there will be exceptional cases in which an order of that nature may be justified. 11. More significantly, even though the plaintiff's delay in commencing its proceedings in the LEC, and making the present transfer application, has opened it to some criticism, the fact remains that the plaintiff had no choice but to commence the two sets of proceedings in the separate Courts, and then to apply for the transfer of one of the proceedings to be heard in the other Court, together with the related proceedings. The plaintiff's delay was therefore not the cause of any additional costs. Rather, the course that the plaintiff has taken was an inevitable consequence of the arrangements in this State, whereby jurisdiction is divided by the relevant legislation between two superior courts of equal standing. 12. Secondly, it is neither appropriate nor necessary for this Court to attach a condition to the making of the transfer order, that the plaintiff give an undertaking to submit to any order made by the LEC as to any costs thrown away by the transfer of these proceedings. 13. It is too late for the defendant to ask the Court to attach this condition to the transfer order. The transfer order has already been made. The defendant did not raise the issue of the transfer order being made conditional at the hearing of the application. The Court should not retrospectively attach the condition sought. 14. The condition is unnecessary. The effect of s 149D(3) of the CPA is that, following the transfer of these proceedings to the LEC, that Court will have the power to make orders as to costs that include the costs of the application for transfer, and the costs of any step taken in these proceedings before the transfer order was made. Additionally, the LEC will have power to make all appropriate costs orders in relation to both proceedings in relation to all steps taken before the LEC: see s 4(1), Schedule 1 and s 98 of the CPA. The proceedings are Class 4 proceedings, and there was no suggestion that they are proceedings brought in the public interest for the purposes of rule 4.2 of the Land and Environment Court Rules 2007 (NSW). Therefore, if any costs are thrown away as a result of the transfer application, the LEC will have full power to make appropriate costs orders as it may, in its discretion, think fit. 15. It is therefore unnecessary to require the plaintiff to submit to any particular type of costs order that the LEC may make. 16. For the reasons given above, I am of the view that the costs order originally sought by the plaintiff, and the costs order that the Court initially proposed to make, was the proper one. 17. The Court therefore makes the following additional order: Order that the costs of the transfer application be the parties' costs in the cause.