[2016] WASC 386 (S)

JURISDICTION

: SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION

: COOPER & OXLEY BUILDERS PTY LTD -vSTEENSMA [2016] WASC 386 (S)

CORAM

: LE MIERE J

HEARD

: ON THE PAPERS

DELIVERED

: 18 JANUARY 2017

FILE NO/S

: CIV 1157 of 2016

BETWEEN

: COOPER & OXLEY BUILDERS PTY LTD

Applicant
AND
AUKE STEENSMA
Respondent
AM LAND PTY LTD
Other Party

FILE NO/S

: CIV 1459 of 2016

BETWEEN

: COOPER & OXLEY BUILDERS PTY LTD

Applicant
AND
STEVE LIEBLICH
Respondent
AM LAND PTY LTD
Other Party

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[2016] WASC 386 (S)

Catchwords:
Costs - Judicial review - Certiorari - Notice of intention to abide - Turns on own
facts
Legislation:
Construction Contracts Act 2004 (WA)
Rules of the Supreme Court 1971 (WA), O 56 r 4, O 56 r 7(1)
Result:
Costs awarded
Category:

Representation:
CIV 1157 of 2016
Counsel:
Applicant
Respondent
Other Party

:
:
:

No appearance
No appearance
No appearance

:
:
:

Mills Oakley Lawyers

No appearance
No appearance

:
:
:

No appearance
No appearance
No appearance

Solicitors:
Applicant
Respondent
Other Party
CIV 1459 of 2016
Counsel:
Applicant
Respondent
Other Party

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[2016] WASC 386 (S)

Solicitors:
Applicant
Respondent
Other Party

:
:
:

Mills Oakley Lawyers

No appearance
No appearance

Case(s) referred to in judgment(s):

City of Subiaco v Minister for Planning & Heritage (Unreported, WASC,
Library No 970051, 19 February 1997)
Cooper & Oxley Builders Pty Ltd v Steensma [2016] WASC 386
Delmere Holdings Pty Ltd v Green [2015] WASC 148
Field Deployment Solutions Pty Ltd v Jones [2015] WASC 136
R v Hastings Licensing Justices, Ex-parte John Lovibond & Sons Ltd [1968] 1
WLR 735
Re Guests; Ex Parte Plutonic Operations Ltd [2001] WASC 158
Re Nicholls SM; Ex Parte Plutonic Operations Ltd [2002] WASCA 232 (S)

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[2016] WASC 386 (S)

LE MIERE J

LE MIERE J:
Background
1

These two matters were applications for writs of certiorari to issue in

relation to determinations which were delivered by adjudicators under the
Construction Contracts Act 2004 (WA). I heard these matters together on
9 November 2016 and delivered my reasons for decision on 30 November
2016. In my reasons I decided that the adjudicators had each made
jurisdictional errors and each determination should be quashed: Cooper
& Oxley Builders Pty Ltd v Steensma [2016] WASC 386. At the delivery
of the reasons I directed that the parties put on submissions as to the
appropriate costs orders and that issue be determined on the papers. For
the reasons that follow the second respondent, AM Land Pty Ltd
(AM Land), should pay the costs of the applicant, Cooper & Oxley
Builders Pty Ltd (Cooper & Oxley), up to 7 November 2016. That is the
date on which AM Land filed and served a notice that it would abide the
decision of the court (the Notice).

Costs orders sought

2

Cooper & Oxley seeks orders that AM Land pay its legal costs of the
applications. Cooper & Oxley do not seek to recover the costs of the
judicial review application from the adjudicators who were the first
respondents in each matter. AM Land submits that the appropriate order
would be that no order is made as to costs.

Principles in relation to costs of judicial review

3

Order 56 rule 7(1) of the Rules of the Supreme Court 1971 (WA)
deals with costs of judicial review.
The Court may make an order for the payment of the costs of the
proceedings on an application against one or more of these persons -

a)

the applicant;

b)

the person who made the challenged decision or engaged in the

challenged conduct;

c)

a person served with the application;

d)

a person not served with the application whom the Court allowed to
be heard on it.

The court has discretion to award costs in cases of judicial review

and there are no strict guidelines laid down as to how that discretion

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LE MIERE J

should be exercised. The general rule is that the successful party will
recover their costs.
5

It should be observed that in the case of judicial review applications

the party who must pay the successful applicant's costs is usually the other
party to the application and not the respondent decision-maker. This court
will rarely exercise its discretion to award costs against respondent
decision makers: City of Subiaco v Minister for Planning & Heritage
(Unreported, WASC, Library No 970051, 19 February 1997) (Kennedy,
Wallwork & Scott JJ).

AM Land submitted that this is not a case where costs should follow
the event. AM Land referred to R v Hastings Licensing Justices, Exparte John Lovibond & Sons Ltd [1968] 1 WLR 735 as illustrating that
there is a general principle that in cases such as these the court should in
its discretion make no order as to costs. In that decision Lord Parker CJ
said:
It is very rare that this court makes any award in regard to costs on an
application for one of the prerogative orders, unless the party has appeared
and contested the application. Counsel for the applicants has, however,
pointed out in the present case that the respondents, no doubt under a bona
fide misconception as to their rights under the licensing Acts, succeeded in
persuading the magistrates to adopt the same misconception and have
fought this case, as it were, up to 14 December when they wrote saying
they were no longer contesting the application. There is a precedent for
making an award of costs in such a case: see R v Birmingham Union
Guardians ((1874) 44 LJMC 48) (738).

His Honour therefore ordered that respondents pay the applicant's

costs up to 14 December.

Put against that authority are two decisions of this court. The first
was Field Deployment Solutions Pty Ltd v Jones [2015] WASC 136. In
that decision Mitchell J dismissed the application for judicial review and
ordered that the applicant pay the first and second other parties' costs of
the application. The second was Delmere Holdings Pty Ltd v Green
[2015] WASC 148. Kenneth Martin J in that decision said:
Delmere, as the successful party on the application, both in quashing
Mr Green's Determination and in resisting the correlative application to
register and enforce that Determination as a judgment of this court, should,
prima facie, receive its taxed costs upon both applications [145].

The language suggests that his Honour's observation was obiter and I
note His Honour stated that he would determine any residual disputation

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LE MIERE J

on the papers. In any event, the case is distinguishable from R v Hastings

in that his Honour observed that the application in that case was actively
resisted by the other party: Delmere Holdings v Green [5]. Further, the
other party in that action also sought to enforce the determination the
subject of the application: Delmere Holdings v Green [6]. Another point
of difference between those authorities and R v Hastings is the fact that
they were contested throughout the proceedings.
10

The approach of the courts to uncontested applications of a similar

kind to this is seen in Re Nicholls SM; Ex Parte Plutonic Operations Ltd
[2002] WASCA 232 (S) (Wheeler J). In that case the court had made
absolute an order nisi for certiorari. The applicant sought its costs for
both the order nisi stage and the order absolute hearing. The applicant
was wholly successful in obtaining the order nisi in a decision of RobertsSmith J delivered on 20 June 2001 after a hearing where the objector
appeared and unsuccessfully opposed the order nisi: Re Guests; Ex Parte
Plutonic Operations Ltd [2001] WASC 158. However, the applicant was
not awarded its costs of the order absolute hearing. Wheeler J made that
decision on the basis that the applicant was only partly successful in the
order absolute hearing and the objector did not participate in that hearing
and had filed a notice of intention to abide on 15 May 2002. The court
had heard argument on whether an order absolute should be made on 12
June 2002.

11

Cooper & Oxley also submitted that they should have the costs of the
application on the basis that AM Land materially contributed to the
jurisdictional error of the adjudicator by making submissions that were
incorrect in law. Parker CJ's decision in R v Hastings was that where the
other party had a misconception as to their rights under an Act and
persuaded the decision maker to adopt that misconception they would
only be required to pay the costs of the applicant insofar as they actively
opposed the application. I am not convinced that the conduct of AM Land
in the adjudications should lead to the court awarding costs against AM
Land in the subsequent judicial review applications.

AM Land's role in the proceedings

12

AM Land entered a memorandum of appearance in this matter on

25 February 2016. AM Land attended chambers hearings on 25 February
2016 and 1 April 2016. At the appearance on 25 February 2016 counsel
for AM Land, Mr Guerrini, stated that AM Land would have Dr Hockley
appearing as counsel in respect to the argument. On 1 April 2016 Chaney
J ordered AM Land file and serve any affidavit or submissions by 15

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LE MIERE J

April 2016 and 13 May 2016 respectively. Counsel for AM Land, Dr

Hockley appeared with Mr Guerrini. AM Land did not file any affidavits
or submissions, and it filed the Notice on 7 November 2016, two days
before I heard the matter. AM Land submits that its conduct in no way
contributed to the incurrence of costs by the applicant. It was further
submitted that the applicant had the onus to satisfy the court of
jurisdictional error and the matter was required to be heard. At no stage
before filing the Notice did AM Land suggest that they would not contest
the application.
Conclusion
13

The appropriate order is that AM Land should pay the costs of

Cooper & Oxley up to 7 November 2016. AM Land appeared through
counsel on two occasions in relation to these matters and did not file the
Notice until two days before the hearing. Order 56 r 4 of the Rules gives a
person who is served with an application the option to enter an appearance
or file and serve on the applicant a notice stating the person does not
intend to take part in the proceedings and will accept any order made by
the court on the application other than as to costs.

14

This is not a case where the second respondent played no role in the
judicial review proceedings, and it was only by filing and serving the
Notice that AM Land signalled that it was not going to oppose the
application and would not be appearing to make oral submissions. Given
that AM Land did file the Notice I find they took steps, even at that late
stage, to reduce the cost of the proceeding and the time it would occupy.
In circumstances where the hearing would need to have gone ahead in any
event, I find it appropriate that AM Land pay the applicant's costs up to
the time it ceased opposing the application and gave notice that it would
abide the decision of the court. I will therefore order that AM Land pay
the costs of Cooper & Oxley up to 7 November 2016.

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