FEDERAL COURT OF AUSTRALIA

Mees v Roads Corporation [2003] FCA 410

PRACTICE AND PROCEDURE – declaration – power of Court to grant declaration of right – utility of making declaration – declaration sought for purpose of clarifying reasons for judgment

PRACTICE AND PROCEDURE – costs – proper order – proceeding dismissed but applicant successful on substantial issue – respondents unsuccessful at interlocutory stage in resisting order for discovery of documents – letters offering to forego costs if applicant capitulated – whether Calderbank offers – offer after determination of substantive issue but before final orders – whether unreasonable of applicant to refuse – whether litigant’s public representations concerning prior reasons for judgment relevant to determination of question of costs

Federal Court of Australia Act 1976 (Cth) s 21

Warramunda Village Inc v Pryde [2001] FCA 61 (2001) 105 FCR 437 at [8] – applied

Calderbank v Calderbank [1976] Fam 93 – considered

Oshlack v Richmond River Council [1998] HCA 11 (1998) 193 CLR 72 – cited

PAUL ANDREW MEES v ROADS CORPORATION, PETER BATCHELOR AND STATE OF VICTORIA

V 1135 of 2001

GRAY J

23 APRIL 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.           The applicant pay the respondents’ costs of the proceeding on and after 17 April 2003.

3.           Otherwise, there be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 8 April 2003, I published reasons for judgment in this proceeding.  On that day, I made orders requiring the parties to file and serve minutes of the orders they proposed should be made to resolve the proceeding consequent upon those reasons for judgment.  I directed that, if those orders be not agreed, the proceeding be listed for further hearing today, to enable the parties to make submissions concerning the orders that should be made consequent upon the reasons for judgment and the question of the costs of the proceeding.

2                     Subsequent to those orders, both parties filed minutes of orders that they proposed should be made.  The respondents proposed orders that the application be dismissed and the applicant pay the respondents’ costs.  The applicant proposed a declaration to the effect that the referral to the Minister for the Environment (“the Environment Minister”) of the northern section of the Scoresby Freeway, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the EPBC Act”), was misleading in one respect, in that it failed to inform the Environment Minister of the strong chance that a freeway link would be built at some time in the future between the Eastern Freeway at Bulleen and the Metropolitan Ring Road at Greensborough, as a consequence of the building of the northern section of the Scoresby Freeway.  The applicant also proposed that an order be made that the respondents serve the Environment Minister with a copy of the Court’s declaration and reasons for judgment and that the respondents pay the applicant’s costs.  As a consequence of the absence of agreement about the orders that should be made, I have heard submissions today about the appropriate orders.

3                     It is apparent, and the applicant confirmed this morning, that he no longer desires to proceed with the relief that he sought in his amended application, which was filed on 6 March 2002.  In that amended application, the applicant sought injunctions pursuant to s 475 of the EPBC Act, restraining the respondents from further disseminating the alleged misleading information, requiring them to correct the alleged misleading information, and restraining them from taking any further action relating to the construction of the Scoresby Freeway until such time as the alleged misleading information had been corrected and the Environment Minister had made a further determination as to whether approval was necessary for the Scoresby Freeway to proceed.

4                     Given that the applicant no longer wishes to seek that injunctive relief, it is unnecessary for me to deal with any of the issues to which I referred in [120] – [122] of my reasons for judgment as factors that might have stood in the way of the applicant succeeding in his claim for such relief.  Instead, the applicant sought the declaration that I have referred to.  It is clear that s 21 of the Federal Court of Australia Act 1976 (Cth) gives to the Court a power to grant a declaration of right in any matter within its jurisdiction.  So far as power is concerned, there can be no doubt that the Court can make the sort of order sought.  There are, however, two significant problems as to whether such a declaration would have any utility.

5                     In the first case, it is necessary to understand that the Environment Minister has made a decision with respect to the approval of the northern section of the Scoresby Freeway, on the basis that that section of the freeway is not a controlled action for the purposes of the EPBC Act.  The Environment Minister is still to determine whether the southern section is to proceed, having determined that it is a controlled action, or, if it is to proceed, whether it is to proceed subject to any and what conditions.  It is, however, clear from s 78 of the EPBC Act that it would be open to the Minister to revoke his determination that the northern section of the Scoresby Freeway is not a controlled action.  On that basis, there might be some utility in conveying to the Environment Minister the substance of my finding that the referral of the proposal to him did contain information that was misleading in one respect.  The question really is whether that should be done by declaration.

6                     This gives rise to the second issue.  It is clear that the power to grant a declaration of right is a power that should be exercised where there will be some utility in the grant of a declaration.  As the Full Court said in Warramunda Village Inc v Pryde [2001] FCA 61 (2001) 105 FCR 437 at [8]:

“The remedy of a declaration of right is ordinarily granted as final relief in a proceeding.  It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way.  The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment.  This is even more strongly the case when the conclusion is not one from which any right or liability necessarily flows.”

7                     When pressed as to why he desired to have a declaration made, the applicant, who appears in person, said that it was to clarify the fact that a finding in his favour had been made in the reasons for judgment.  He based this on the proposition that, in correspondence to him following the delivery of the reasons for judgment, there had been assertions made by the solicitors for the respondents to the effect that the respondents had been entirely successful in the proceeding.  Indeed, submissions to that effect were made before me.

8                     In my view, it is inappropriate to grant a declaration for the purpose of clarification of reasons for judgment of a court.  There is no power in a court to give an interpretation of reasons for judgment already given.  They must stand or fall according to their own terms.  Of course, parties have the right to comment on them, and comment on them may involve an endeavour to cast them in the most favourable light for the party concerned.  The propensity of people to put a spin on reasons for judgment of a court is not at all unusual.  It is often the case that, for political and other purposes, people will engage in that activity.  A court should not interfere with the right to comment on reasons for judgment by granting declarations as to what its reasons mean.  In my view, the reasons for judgment I gave in the present case are clear as to what I decided and I would not in any event propose to make any clarification of them.

9                     One further matter relating to the question of a declaration should be mentioned.  The applicant did attempt to argue that the provisions of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (“the Regulations”), under which the content of the information to be provided in a referral is to be determined, give rise to the position that the provision of misleading information amounts to a failure to provide the required information.  He referred particularly to reg 4.03 and to item 4.01(e) and (f) in Sch 2 to the Regulations.  It is enough for me to say that it would be a novel proposition that, even if the information provided is misleading, the provision of information amounts to a failure to provide information.  The question whether the requirements of the Regulations have been satisfied is not one that arises directly and in my view should not be equated with the question of the provision of misleading information that arises as one of the elements of the offences referred to in s 489 of the EPBC Act.

10                  It is for those reasons that I take the view that it would be inappropriate in the present case to make a declaration.  It follows that, in the absence of any outstanding claim for relief, the proper order to make would be to dismiss the application.  That leaves the question of costs for determination.

11                  There is no doubt that the usual rule is that costs should follow the event.  The presence of that rule, however, is a foundation for the exercise by a court of a discretion as to whether it will grant an order for costs, or for all costs, in a particular case.  Of course, that discretion must be exercised on proper considerations and in a judicial manner.

12                  I have heard substantial submissions from counsel for the respondents as to why the usual rule should apply.  As I have said, those submissions were designed to persuade me that the applicant has not succeeded at all in the proceeding, at least in the terms in which he claimed relief.  It is true that the applicant has not succeeded on the relief that he claimed in his initial application.  In [3] – [4] of my reasons for judgment of 8 April 2003, I referred briefly to the history of the proceeding and to the manner in which the relief sought in it came to be changed.

13                  Having reviewed the transcript of the directions hearing on 4 March 2002, I am now in a position to say that, although there was formal opposition to the leave for which the applicant had applied to amend the application, and formal opposition to the addition of the State of Victoria as the third respondent, that opposition to some degree dissipated in the course of the directions hearing.  By the end of that directions hearing, the solicitor who appeared for the then existing respondents, having been given by the applicant an explanation as to why the amendment was sought, indicated that he wished to make no further submissions about it, or about the application for leave to amend generally.  As a consequence, I granted leave to amend.

14                  On that occasion, I also made certain remarks indicating that, whilst the respondents had indicated that they might wish to pursue an application to strike out the proceeding, it may be that such an application would in any event be referred to the trial, on the basis that it would be unlikely to save significant amounts in the way of costs, and may well be productive of extra costs.  In the result, no application to strike out was proceeded with by the respondents.  They elected to go to trial on the basis that they were prepared to fight at the trial the major issue, which was whether the referral of the northern section of the Scoresby Freeway to the Environment Minister contained information that was misleading.  Although they were partially successful, in that the applicant was not able to establish, as he contended, that there was a secret plan to construct the freeway link between the Eastern Freeway and the Metropolitan Ring Road, they were unsuccessful in the manner in which I expressed my finding in [118] of my reasons for judgment.

15                  I should say also that, in the course of the interlocutory stages of the proceeding, a question arose whether the respondents should make discovery of documents.  Because they would not agree to make such discovery as the applicant sought, substantial argument was mounted at a directions hearing by senior counsel on behalf of the respondents.  Although I reserved costs on that occasion, I would be very much against the notion that the respondents should have their costs of their unsuccessful attempt to resist making discovery. 

16                  On the basis of all those considerations, and given that the applicant succeeded on a substantial issue, being in essence the major issue on which the trial was conducted, it seems to me that the most obvious order to make would be to allow costs to lie where they fall, ie to make no order as to costs of the proceeding.

17                  Counsel for the respondents have argued that, because of the way in which negotiations have been conducted, I should make the applicant pay costs in any event, because he unreasonably refused offers at various stages of the proceeding.  Prior to Wednesday of last week, 16 April 2003, the solicitors for the respondents had sent what they now seek to characterise as Calderbank-type offer letters to the applicant (see Calderbank v Calderbank [1976] Fam 93).  When they are examined in substance, these letters do not amount, in my view, to Calderbank offers.  They amount, rather, to assertions that the respondents were in a strong position to defeat the proceeding and that the applicant should capitulate.  If he were to do so at that time, the respondents were prepared to allow him to capitulate without enforcing any obligation to pay their costs.  But the letters reminded the applicant that if he were to proceed to judgment and to fail he might be obliged to pay costs.  There was nothing in the nature of an offer of anything that the applicant might have sought in the proceeding, below which he might have fallen, in order to invoke the Calderbank principles.  Indeed, a comparison with the position put in those early letters and the position following my reasons for judgment of 8 April 2003 is that the applicant succeeded beyond the position put in those letters.  Accordingly, I do not regard those as governing the position with respect to costs. 

18                  One such offer, however, was made on 16 April 2003 and deserves further attention.  In the course of the morning on that day, the solicitors for the respondents sent by facsimile transmission to the applicant a letter in the following terms:

“We refer to your fax of 14 February 2003.

After further close consideration of the Court’s reasons for judgement [sic], we have reached the view that the Court does not have any jurisdiction to make the declaration or orders that you suggest.  For this reason, our clients cannot consent to your proposal.

However, like you, our clients are keen to avoid the possibility of a further hearing regarding orders.  For this reason, our clients propose that the matter be resolved by:

            (a)        our clients undertaking to you to provide a copy of the
                        Court’s decision to the Federal Environment Minister; and

            (b)        the Court dismissing your application and making an order
                        that each party bear their own costs. 

We have set out the orders that would formally be made in the minutes attached.

If you do not consent to this proposal, our instructions are to proceed to hearing on 23 April 2003, and to submit at that hearing that the proceeding should be dismissed and that you should be ordered to pay the Respondents’ costs.  We will use this letter on any question of costs which arises.”

19                  The terms of that letter fortify me in the view that, absent any Calderbank-type offer, the most appropriate outcome for the proceeding was an order that the application be dismissed and an order the effect of which would cause each party to bear their own costs.  The letter, however, does fulfil the criteria of a Calderbank offer.  It does make an offer in the form of an undertaking to provide a copy of the reasons for judgment to the Environment Minister.  In failing to achieve his declaration, or the order that he sought (which he abandoned), the applicant has fallen below that standard.  The question therefore arises whether it was unreasonable for him not to have accepted the offer.

20                  That question requires me to attempt to assess the time at which it would have been reasonable for him to make a response.  That issue is decided in the present case by the fact that, at approximately 3.00 pm on 16 April, the applicant telephoned the respondents’ solicitors to advise them that he rejected their offer.  So much is common ground. 

21                  In my view it would have been reasonable for the applicant to have accepted the offer.  He has endeavoured to persuade me that the fact that the respondents were seeking to advance a view favourable to their own cause as to the meaning of my reasons for judgment sufficiently justified his attempt to seek a declaration.  For reasons that I have given I do not think that that was the case.  As a consequence, it seems to me that it is appropriate that the applicant should bear the respondents’ costs from and including 17 April 2003.  Otherwise, the costs should lie where they fall.

22                  I should say that, in reaching this conclusion, I have not had occasion to consider the principles which have been explored in cases such as Oshlack v Richmond River Council [1998] HCA 11 (1998) 193 CLR 72, as to whether parties who bring proceedings in what might be called the public interest should be relieved of their normal obligation to pay costs if they are unsuccessful.  I note the somewhat broad provisions in the EPBCActas to the standing of persons who may bring proceedings and note that they are not accompanied by any provision that would relieve unsuccessful applicants of their obligation to pay costs.  This may be taken to be some indication as to whether parliament intended that the public interest principles should apply, especially as there is specific provision in the EPBC Act relieving such persons of obligations to give undertakings in damages if they seek interlocutory injunctions.  I need say no more about this.

23                  Among the material placed before me today, the respondents included some material suggesting that the applicant had not been entirely truthful in his characterisation of the proceedings, or of my reasons for judgment, for political purposes.  When pressed as to why that material had been provided, senior counsel for the respondent indicated that it was to resist any possible application for relief from costs based on the public interest litigation principles.  He also attempted to justify the tender of that material on the basis that it bore generally upon the question of costs.  As I have said before, parties will seek to place their own interpretations on legal proceedings and on the results of them to suit their own purposes, whether political or otherwise.  The applicant certainly has not had a monopoly on that in this case.  It would be very wrong if the Court set itself up as a censor of the comments that people might make about proceedings, or about their outcomes, by threatening to use the conduct of parties as a ground for awarding or withholding costs.  For these reasons, I have not had regard to that material in reaching my conclusion that, other than the costs of the respondents on and after 17 April, the appropriate order is that costs should lie where they fall.

24                  The orders of the Court are as follows:

1.         The application be dismissed.

2.           The applicant pay the respondents’ costs of the proceeding on and after 17 April 2003.

3.           Otherwise, there be no order as to costs.

Associate:

Dated:              5 May 2003