Re S11a of the City Area Leases Ordinance 1936 (As Amended) and Re Applications By Morpath Pty Limited To Vary the Covenants In the Crown Lease of Blocks 8 and 9 of Section 43 Division of Turner [1988] ACTSC 2 (18 January 1988)

SUPREME COURT OF THE ACT

IN THE MATTER OF S.11A OF THE CITY AREA LEASES ORDINANCE 1936
(AS AMENDED) and IN THE MATTER OF APPLICATIONS by MORPATH PTY.
LIMITED to vary the Covenants in the CROWN LEASE of BLOCKS 8 and 9
of SECTION 43 DIVISION of TURNER
S.C. No. 1298 of 1984
S.C. No. 1299 of 1984
Costs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Morling J.(1)

CATCHWORDS

Costs - application for variation of purposes clause in Crown Lease - City Area Leases Ordinance 1936 - objectors unsuccessful - Minister playing active role on hearing of application - whether Minister entitled to costs - whether objectors entitled to costs.

In the Matter of Tekmat Investments (Formarly Axiom) Pty. Ltd. - 27 November 1987, A.C.T. Supreme Court, Kelly J. (unreported)

Re Bailey's application and Re Australian Capital Press Holding Ltd.'s application (1966) 10 FLR 175

HEARING

CANBERRA
18:1:1988

Counsel for the applicant: Mr Tamberlin Q.C. with Mr Lunney instructed by Barker and Barker

Counsel for the Minister for Territories: Mr Simos Q.C.with Mr Curlewis instructed by The Australian Government Solicitor

Counsel for the A.C.T. Youth Accommodation Group Incorporated: Mr Nash: instructed by Mr G. Masri

Counsel for the remaining objectors: Mr Hull instructed by Macphillamy Cummins & Gibson

ORDER

The applicant pay the Minister's costs in the sum of $200.00.

No order as to the costs of the objectors.

DECISION

On 27 November 1987 I published my reasons for granting these applications and reserved the question of costs.

2. When the Federal Court of Australia allowed the appeal from Gallop J. it ordered that the costs already incurred in the proceedings should be dealt with by the judge re-hearing the application. Accordingly, it is necessary that I deal with the costs of the original hearing before Gallop J. as well as the costs of the re-hearing before me.

3. Viewing the proceedings in their entirety, it is fair to say that the applicant had total success. Conversely, it is also true to say that the objectors had no success. This was not a case in which the considerations in favour of and against granting the application were finely balanced. On the contrary, the case for granting the applications was very strong.

4. The Minister seeks an order that he receive a full order for costs, as distinct from the nominal amount which is normally awarded to him. It is submitted that he is entitled to all his costs because, in the present case, he actively supported the application by explaining in detail the town planning considerations underlying the Turner Policy Plan and Development Plan which permitted development of the kind proposed to be carried out by the applicant.

5. It is true that the Minister took an active part in supporting the application and necessarily incurred substantial costs in doing so. Nevertheless, I do not think that the applicant should be required to pay the Minister's costs, save as to a nominal amount. In reality, the Minister's role in the proceedings was to support the policies of the Commission. That was an entirely proper role for him to play but I do not think that the applicant should be required to pay his costs of performing it. The Minister was not obliged to take an active part in the proceedings and I think it would be unreasonable to require the applicant to pay his costs when they were incurred of his own volition. I would have thought that the witnesses called by the Minister could have been called as easily in the applicant's case. The Minister's desire to be represented by his own counsel is understandable, but it should not lead to the result that the applicant should have to pay the cost of separate representation.

6. Although each case must depend on its own facts, it is to be observed that in the matter of Tekmat Investments (formerly Axiom) Pty. Limited - 27 November 1987 - Kelly J. ordered that the applicant should pay only $50 in costs to the Minister, notwithstanding that the Minister appeared by counsel and apparently took an active role in the proceedings.

7. It seems to me that the costs which should be allowed to the Minister ought to be enough to cover his costs in having his representative attend the Court for the purpose of informing it of his attitude to the application. The amount awarded to the Minister in past cases has been the conventional sum of $50.00, but it seems to me that the ravages of inflation have made this sum inadequate. Accordingly, I order the applicant to pay the Minister's costs in the sum of $200.00.

8. I turn now to consider the application that the applicant pay the objectors' costs. In Tekmat (supra) Kelly J. said at p.14 that:

" . . . , in general, where local residents, reasonably

and properly, advance with some degree of success
arguments against an application for variation they
ought not to be deprived of their costs or at least
of a substantial part of them unless the arguments
they advanced have already been the subject of
authoritative decision or decisions applicable in
all the circumstances to the circumstances of the
objectors."

9. This dictum seems to reflect a more favourable attitude to the granting of costs to unsuccessful objectors than has been shown in earlier cases. Later in his reasons Kelly J. observed that an objector is unlikely to obtain an order for costs if he merely advances arguments which have been dealt with by the Court before or if he fails to adduce evidence which goes at least some distance towards proving, even if in the event inadequately, a ground upon which he seeks to rely,

10. If the objectors had achieved even moderate success in opposing the applications I would have felt disposed to make some limited order for costs in their favour. But I do not think it can be fairly said that they achieved even moderate success in their opposition to the applicant's proposals.

11. It is true that I gave consideration in my reasons to matters such as the height of the proposed building, the adequacy of the provision for car parking and other matters relating to the amenity of persons living in the area, but the cases made by the objectors on these matters did not change the decision at which I ultimately arrived. Indeed, some of these matters were raised for consideration by the Court itself, and not by the objectors.

12. It must have been apparent that the approvals granted to the erection of the two substantial commercial buildings to the north of the subject land, and the subsequent erection of those buildings, made it very difficult to successfully oppose Morpath's application. Nevertheless, much time was occupied pursuing some objections having little or no merit.

13. In Tekmat, Kelly J. referred to the following observation made by Eggleston J. when dealing with an application for costs by an unsuccessful objector in Re Bailey's Application and re Australian Capital Press Holding Ltd's Application (1966) 10 FLR 175, Eggleston J.:

"I think all the matters which the objector urged
before me were matters which might have been urged
in previous applications and were not. I do not
feel that that particular objector contributed
anything more than some hurdles to be surmounted
before the race could be completed and in the
circumstances I do not propose to allow that
objector any costs of these applications."

Much of what is said in this observation has application to the present case.

14. In all the circumstances, there will be no order as to the costs of the objectors.