Clarence City Council v Howlin

• Jurisdiction: Tasmania
• Judge: Crawford CJ,Tennent J
• Judgment Date: 23 April 2010
• Court: Full Supreme Court
• Docket Number: 279/2009
• Date: 23 April 2010

[2010] TASFC 2

[2009] TASSC 18

SUPREME COURT OF TASMANIA (FULL COURT)

Crawford CJ, Tennent and Wood JJ

279/2009

Clarence City Council

and

Howlin, Darryl Robert

Howlin, Helen Lorraine

Howlin

and

Brinckman

Howlin

and

Clarence City Council

REPRESENTATION:

Counsel:

Appellant: S B McElwaine, E Judd

Respondents: In person

R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; Livesey v New South Wales Bar Association (1983) 151 CLR 288, applied.

Re JRL; ex parte CJL (1986) 161 CLR 342; Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (Cth) (1999) 74 ALJR 68, 166 ALR 302, considered.

Aust Dig Procedure [13]

Naomi Marble and Granite Pty Ltd v FAI General Ins Co Ltd (No 2) [1999] 1 Qd R 518; Symphony Group plc v Hodgson[1994] QB 179, [1993] 3 All ER 143; Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406; Knight v FP Special Assets Ltd (1992) 174 CLR 178; O'Neill v De Leo (1993) 2 Tas R 225; Re JJT (1988) 195 CLR 184; Bischof v Adams (1992) 2 VR 198; National Mutual Life Association of Australasia Ltd v Chris Poulson Insurance Agencies Pty Ltd (1998) 8 Tas R 123; Wentworth v Wentworth (1999) 46 NSWLR 300; Re Bonlac Foods Ltd (2001) 37 ACSR 457, applied.

Aust Dig Procedure [551]

Procedure — Courts and judges generally — Judges — Disqualification for interest or bias — Particular relationships or circumstances — Other matters — Apprehension of bias by pre-judgment — Application for costs against non-party following judgment in action — Non-party seeking to challenge findings and conclusions of trial judge.

Procedure — Costs — Jurisdiction — Persons not parties to proceedings — Proceedings between two land owners concerning whether land of one was a public highway — Application for costs against local council — Discretion of court — Interests of justice — Whether causal connection between non-party and proceedings — Whether exceptional circumstances.

Orders of the Court

• 1 Appeal allowed.

• 2 Order that the appellant pay the respondents' taxed costs of the action from 11 December 2005 set aside.

• 3 Application of the respondents against the appellant for costs dismissed.

REASONS FOR JUDGMENT

FULL COURT

Crawford CJ

1 The respondents, Mr and Mrs Howlin, sued a neighbour, Mrs Brinckman, for a declaration that land referred to as Marsh Street, Opossum Bay, was a public highway.

2 The hearing of the action occupied four days between 26 and 29 March 2007. On 14 August 2007, the judge who conducted it gave judgment for the respondents against Mrs Brinckman. An order was made declaring that all of Marsh Street, which I will refer to at times as the Howlin portion of Marsh Street and the Brinckman portion of Marsh Street, was a public highway. See Howlin v Brinckman [2007] TASSC 59.

3 The respondents applied for an order that Mrs Brinckman pay their costs of the action. On 10 December 2007, the learned judge dismissed the application and ordered that the parties pay their own costs of the action. See Howlin v Brinckman (No 2) (2007) 17 Tas R 99; [2007] TASSC 100.

4 On 14 January 2008 the appellant first became involved in the action when the respondents filed an application seeking ‘an order that the Clarence City Council pay indemnity costs incurred by the plaintiffs of and incidental to the action’. The appellant opposed the application. It was heard by the same judge on six dates between 19 and 27 August 2008.

5 On 26 March 2009, his Honour found for the respondents and ordered that the appellant pay the respondents' taxed costs of the action from 11 December 2005. See Howlin v Brinckman; Howlin v Clarence City Council [2009] TASSC 18. That was the date upon which a copy of the writ, by which the respondents sued Mrs Brinckman, was delivered to the Mayor of the appellant with an accompanying letter from the respondents.

6 The council appealed against that order to this Court. I have determined that the appeal should be upheld, the order for costs against the appellant should be set aside, and in its place the respondents' application for costs should be dismissed.

The grounds of appeal and their resolution

7 There are nine grounds of appeal. The first, ground (a), is that the learned judge erred in law by failing to disqualify himself from hearing the application against the appellant for costs, by reason of apprehended bias. For reasons that will be explained, I have decided that the ground is a sound one and, as the learned judge should have disqualified himself, the order for costs should be set aside.

8 I have also decided that this Court should re-determine the respondents' application for costs and in the exercise of its discretion, dismiss it. In the course of considering that question, I have decided that ground (i) has been made out as well. It asserts that the exercise of the discretion by the learned judge concerning the application for costs was unreasonable, plainly unjust and erroneous.

9 In view of those decisions, I have found it unnecessary to deal with grounds (b), (c), (d), (e), (g) and (h). They assert a failure to apply orthodox legal principles to the exercise of the discretion to make a costs order against the appellant; a failure to identify and make findings why the appellant caused or was responsible for the making of the costs order of 10 December 2007; a failure to make relevant and material findings of fact as to why the respondents sued only Mrs Brinckman and did not join the appellant as a party to the action; a taking into account of irrelevant matters when exercising the discretion to make a costs order against the appellant; an error in law by finding that Marsh Street was a public highway; and the making of an inconsistent finding that Marsh Street was a private street.

10 Ground (f) asserts that the learned judge misunderstood material facts and made findings against the appellant which were not supported by the facts or the application of correct legal principle. To a limited extent I have dealt with the ground, particularly when stating the facts found by the learned judge in his first judgment.

11 In these reasons, references to the council and the appellant are interchangeable and may include its predecessors, the Municipalities of Bellerive and Clarence. There is no need to distinguish between them.

Facts found by the learned judge in the judgment of 14 August 2007

12 Particularly for the purpose of dealing with the disqualification issue that is raised by ground (a), it is necessary to refer to facts found by the learned judge in his first judgment, after a trial in which the respondents and Mrs Brinckman participated as parties to the action, but not the appellant. The principal argument of the appellant for disqualification was based on its challenge to many of the findings of fact, including the ultimate one that Marsh Street was a public highway. The appellant's argument was that because of pre-judgment, the learned judge should have disqualified himself.

13 All of the land involved in the case is registered under the Land Titles Act 1980. With immaterial errors and omissions, I will use the attached plan to explain the land involved.

14 The land referred to as Marsh Street is shown as the Howlin portion of Marsh Street and the Brinckman portion of Marsh Street. Since 1978, Mrs Brinckman had owned the area of land shown as 5354 square metres, which I will refer to as the Brinckman land. It included the Brinckman portion of Marsh Street.

15 Since 1999, the respondents had owned what is shown as the Howlin land to the east of the Brinckman portion of Marsh Street. The title of the respondents to the Howlin land had the benefit of a right of carriage way over the Brinckman portion of Marsh Street, but not over the Howlin portion of Marsh Street.

16 In 2003, the respondents also became the owners of the Howlin portion of Marsh Street. Their title was burdened by a right of carriage way across it in favour of the Brinckman land only.

17 The titles of each of the owners of lots 1 to 5 and 7 to 9 that front onto the Brinckman portion of Marsh Street (and must not be confused with the lots fronting Spitfarm Road (effectively an extension of South Arm Road)), had the benefit of a right of carriage way over both the Brinckman portion of Marsh Street and the Howlin portion of Marsh Street. Those rights of way were intended to provide them with access to and from Spitfarm Road. However, because of some error, the title to the Howlin portion of Marsh Street was not burdened by those rights of way. The title of lot 6 that fronts onto the southern side of the Brinckman portion of Marsh Street, had the benefit of a right of carriage way over the Brinckman portion of Marsh Street only. 1

18 The respondents wished to subdivide the Howlin land. If they were successful in establishing that both portions of Marsh Street were a public highway, they would have been able to create many lots of land. However, if they had only a right of way over the Brinckman portion of Marsh Street, their subdivision would have been limited to three lots. 2

19 The respondents and Mrs Brinckman presented opposing arguments to the appellant, which was the local government authority, concerning whether both portions of Marsh Street were a public highway. The respondents maintained the existence of a public highway and Mrs Brinckman maintained the existence of rights of way only.

20 On legal advice, the appellant maintained a neutral position on the matter. It decided to leave the question to the Howlins and Mrs Brinckman to fight out in court. The respondents sued only Mrs Brinckman and did not seek to involve the appellant in the action. Once the appellant became aware of the action, it did not seek to be made a party to it, nor to be involved in any way.

21 The...