Agia Projects Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 16

Land and Environment Court

New South Wales

Medium Neutral Citation:

Agia Projects Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 16

Hearing dates:

23 February 2024

Date of orders:

12 March 2024

Decision date:

12 March 2024

Jurisdiction:

Class 7

Before:

Robson J

Decision:

See orders at [34]-[35]

Catchwords:

COSTS — Costs assessment — Determination — Self-represented litigant — Class 7 proceedings

APPEAL — Appeal against conviction in Local Court wrongly commenced — Conviction in Local Court annulled during proceedings in the Land and Environment Court — Appeal discontinued — Orders made that applicant pay 60% of respondent’s costs including costs of the application for costs

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 32, 36

Category:

Costs

Parties:

Agia Projects Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Giannikos, self-represented (Applicant)
J Chenhall, solicitor (Respondent)

Solicitors:
Self-represented (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/00290029

Publication restriction:

Nil

Judgment

Introduction and outcome

1. Woollahra Municipal Council (‘Council’) seeks its costs incurred as the respondent in these Class 7 proceedings commenced by Agia Projects Pty Ltd (‘Agia’), seeking leave to appeal from the whole of the decision in the Local Court of NSW given on 15 August 2023 finding Agia guilty of an offence of “pollute waters” pursuant to s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (‘POEO Act’).

2. The Local Court imposed a penalty of $10,000 and awarded professional costs in favour of Council in the sum of $6,600.

3. The appeal was commenced by Agia on 11 September 2023 and on 3 November 2023, this Court made orders adjourning the proceedings to 17 November 2023 on the basis that Agia, after the commencement of these proceedings, had made an application to the Local Court under s 4 of the Crimes (Appeal and Review) Act 2001 (NSW) (‘Review Act’) for an annulment which was listed for hearing on 16 November 2023.

4. Consequent upon success of the annulment application in the Local Court on 16 November 2023, Agia indicated its intention not to pursue these proceedings. Council now seeks its costs incurred in the conduct of the proceedings and Agia seeks an order that a portion of its costs be paid by Council.

5. For the reasons that follow, I find that it is appropriate to dismiss the appeal and that Council is entitled to 60% of its costs including its costs of the application for costs.

Background

6. An understanding of the background provides context for the detailed submissions made by each of the parties and, in particular, the submissions made by Mr Athan Giannikos as the sole director of Agia who appeared both in the Local Court proceedings and before this Court without legal representation.

7. Council commenced proceedings in the Local Court by filing a court attendance notice on 3 March 2023 alleging that Agia had polluted waters on or about 17 October 2022 at or about Yarranabbe Road, Darling Point. The offence arose pursuant to s 120(1) of the POEO Act.

8. The matter in the Local Court proceeded ex parte on 15 August 2023. Mr Giannikos maintains that the ex parte judgment was obtained inappropriately in circumstances where he was informed by Council’s legal representative that the proceedings were listed before the Local Court on 15 August 2023 for “mention” only and that Agia did not need to appear. As will be seen, this fact is disputed, although I do not consider it particularly relevant to the costs dispute before me for reasons I will later give.

9. On 1 November 2023, shortly after receipt of Agia’s summons filed in this Court, Council brought to Mr Giannikos’ attention that Agia’s application for leave to appeal under s 32 of the Review Act was opposed on the basis that, pursuant to s 32(3), the Court could not grant leave to appeal in circumstances where Agia was “entitled to make an application [for an annulment pursuant to s 4 of the Review Act] but had not done so”.

10. On 2 November 2023, Council informed Agia that it would not consent to the adjournment of the matter listed for directions (and first return date) on 3 November 2023 before Moore J, and that it intended to seek an order that the appeal be dismissed at the first directions hearing.

11. On 3 November 2023, Council's solicitor sought that the summons be dismissed (with costs) however Moore J adjourned the matter to 17 November 2023 on the basis that Agia had made an application for annulment in the Local Court which had not been determined.

12. On 14 November 2023, the Court adjourned the matter by consent to 1 December 2023 to allow Agia’s application for annulment to be determined.

13. On 16 November 2023, the Local Court annulled the conviction made on 15 August 2023 pursuant to s 4 of the Review Act and listed the proceedings for further hearing in the Local Court on 6 February 2024.

14. By email of 23 November 2023, Council's solicitors informed Agia that, in the circumstances, these proceedings should be discontinued and that such application could be made by way of Agia filing a notice of discontinuance. Council also noted that if Agia did not make an application to discontinue, Council would make an application to dismiss the application on 1 December 2023 and seek an order for its costs. Agia responded suggesting each party pay its own costs.

15. The matter came back before this Court on 1 December 2023 at which time the Court gave the parties the opportunity to resolve the costs dispute on a without prejudice basis, however, as no agreement was reached, the matter was listed for hearing on the issue of costs on 23 February 2024.

16. As will be considered later in this judgment, between 20 December 2023 and 31 January 2024, correspondence passed between Mr Giannikos (on behalf of Agia) and Council's solicitors in relation to the costs.

Hearing and evidence

17. The hearing of Council’s costs application proceeded on 23 February 2024. Ms Chenhall, solicitor, appeared for Council and Mr Giannikos appeared for Agia again, without legal representation.

18. Council read the affidavits of Jennifer Anne Chenhall affirmed 1 December 2023 and 23 February 2024, and the affidavit of James Nash affirmed 15 November 2023. Mr Nash, the solicitor who appeared for Council in the Local Court proceedings, also gave short oral evidence, and was cross-examined by Mr Giannikos. Agia read the affidavit of Athan Giannikos sworn 21 February 2024.

19. The substance of the evidence relied upon is noted in the above background and in my summary of the parties’ submissions and my further consideration thereof.

Council's position

20. Council maintains that at all material times it has acted reasonably and informed Mr Giannikos (on behalf of Agia) that these proceedings were unmaintainable as he had not sought an annulment and that in circumstances where the annulment was thereafter sought and granted, Council's simple position is that it is entitled to its costs.

21. Council further submits that the matters have come before the Court on a number of occasions and there had been adjournments in relation to this application for costs and points to the “large number” of emails between Council and Agia where Council informed Agia that it had no legal standing to make the present application and invited Agia to withdraw the application. Further, if Agia had accepted the earlier offer made by Council (in the sum of $6,500), significant further time and costs would have been saved not the least of which relates to the consideration of the lengthy affidavit of Mr Giannikos which was provided the day before the hearing.

22. In summary, Council submits that as costs are compensatory and that it had properly conducted itself by bringing to Mr Giannikos’ attention the concerns regarding this Court’s ability to deal with the appeal in circumstances where an annulment had not been sought (or given), it is appropriate for Council to receive its costs. By reference to the various emails forwarded by Council in relation to settlement of the matter, Council further submits that its conduct was in all circumstances fair and reasonable, and it is seeking compensation for its costs and not seeking to “punish” Agia.

Agia’s position

23. Mr Giannikos directed the Court to various matters in his affidavit and maintained that the initial ex parte decision of the Local Court had been brought about by advice given to him by Council’s legal representative which was “misleading” at or around the time of the Local Court proceedings to the effect that the proceedings were listed for a “mention” and that “he did not need to attend”. He maintains that on 25 August 2023, when he (on behalf of Agia) failed to appear, Council proceeded and obtained the conviction ex parte, and thereafter he commenced these proceedings in circumstances where he was unaware, as Agia had not taken legal advice, of the requirement or opportunity to seek an annulment.

24. Mr Giannikos submits that he has acted reasonably on behalf of Agia in circumstances where, again without legal advice, he acted promptly upon being informed that an application for annulment was appropriate and that it was reasonable not to discontinue the appeal proceedings pending the determination of the annulment (as was noted by Moore J). Mr Giannikos reiterated that he was not aware until he received Council’s email dated 1 November 2023 of the ability to make an application pursuant to s 4 of the Review Act and otherwise has acted reasonably in relation to these proceedings.

25. Although understanding that it is not necessarily relevant to the present matter, Mr Giannikos informed this Court that a separate ex parte judgment was obtained against Agia in the Local Court at the re-hearing of the Local Court proceedings on 6 February 2024 in circumstances where he did not attend due to ill health and that he had informed both Council and the Local Court of his inability to attend. He also indicated that he understood that subject to any further application for annulment (which may not be available to him at this stage), he may be required to commence further (Class 7) appeal proceedings in this Court.

26. In summary, Mr Giannikos submits that Agia had not known about the ability to seek an annulment, and that the costs incurred by Council would have been significantly less if Council had agreed to his various proposals for adjournments by consent and that even though there was no agreement, the Court (constituted by Moore J) understood that it was appropriate for the adjournment on 3 November 2023, and costs were thereby unnecessarily incurred. He further submits that he provided quick responses and consented to any request of Council for adjournments in relation to other motions and attempted at all material times to cooperate and minimise the costs of the parties and avoided wasting the Court’s time. Moreover, in his submissions (and in par (34) of his affidavit), Mr Giannikos seeks “my company's full costs of the Land and [E]nvironment [C]ourt proceedings”, and in the alternative, that Agia not be ordered costs in relation to various “unnecessary hearings”.

Consideration

27. It is clear that s 32(3)(a) of the Review Act militates against the commencement of this appeal and that Council brought this to the attention of Agia at the earliest opportunity.

28. I have considered the detailed evidence, particularly the affidavits of Mr Giannikos and Mr Nash. I have also considered the correspondence between the parties and note that subsequent to the directions hearing on 1 December 2023, when the Court gave the parties the opportunity to discuss the issue of costs, there were exchanges between the parties by email from Council dated 20 December 2023 indicating that Council's legal costs at that time were approximately $10,000 and that Council was willing to accept by way of compromise, payment of $6,500; and further, by letter of 18 January 2024 indicating that Council’s offer was withdrawn. Thereafter, Mr Giannikos sought further time to consider Council’s offer and sought further details of the offer which Council provided by email dated 19 January 2024. A few days later, by email dated 22 January 2024, Mr Giannikos reiterated that Agia had appealed against the ex parte judgment and explained that he had sought the annulment when he was informed of the availability of that approach, and noted that subsequent to the annulment application being made, Council did not consent to further adjournments to allow time for the application for annulment to be determined, and when it was successfully determined, he sought to resolve the matter by making an offer in the sum of $1,000 in full and final settlement on the question of costs, which offer was refused by Council.

29. With respect to the detailed evidence marshalled and submissions made by Mr Giannikos (on behalf of Agia), it is clear that a matter of some concern to him is his strongly held view that the reason he did not attend the Local Court for the hearing on 15 August 2023 was that he had been informed by Council's then representative that the matter had been listed for “mention” only on 15 August 2023 and that he did not need to attend. Mr Nash gave evidence that words to that effect were not said.

30. For clarity, I do not consider that it is relevant to determine the dispute between the parties as to whether or not Mr Giannikos’ claim that the “cause” of the ex parte judgment the subject of these appeal proceedings resulted from conduct of Council. However, if I was to so decide, I would not be satisfied that the judgment in the Local Court was a “result” of Council’s conduct. As such, I again note that I do not consider that matter to be relevant to the current application for costs. For further clarity, I do not take into account the fact that there has been a second ex parte judgment of the Local Court on 6 February 2024 again as a result of non-attendance by Agia.

31. Setting the above matters aside as it is not relevant to my decision, and remaining conscious that Mr Giannikos (on behalf of Agia, as its sole director) has appeared before me (and as I understand it, in its various earlier attendances both in the Local Court and before this Court) without legal representation, I accept that there may have been some misunderstanding as to the obligation to seek an annulment of the initial decision. Despite this, Agia commenced these proceedings in circumstances where they were initially, at the very least, inappropriate (and/or ill-advised), and subsequently became otiose upon the annulment. Council properly and promptly brought its concerns to Agia’s attention.

32. I have closely considered the correspondence between the parties and their conduct in an attempt to effect some resolution in relation to costs and I cannot see any reason to indicate that Council has acted in a manner that would disentitle it to an award of costs.

33. Section 36(3) of the Review Act provides the Court with a broad discretion to make an order as to the costs to be paid by the appellant. Accepting as I must, that the expense incurred by Council in defending these proceedings and incurring costs is a matter properly to be taken into account and noting that costs are compensatory and not punitive, I find that Council's conduct in these proceedings was at all times appropriate. However, I remain conscious that Agia acted, at least earlier in the proceedings, in ignorance of the correct procedure – likely because it had not taken legal advice. In all the circumstances, I consider that Council is entitled to 60% of its costs including its costs of the application for costs.

Orders

34. The orders of the Court are:

1. Proceedings 00290029 of 2023 are dismissed.

2. Agia Projects Pty Ltd is to pay 60% of Woollahra Municipal Council’s costs of the proceedings including its costs of the application for costs.

35. The Court notes:

1. The Notice of Motion filed by Agia Projects Pty Ltd on 21 February 2024 seeking to adjourn the hearing of the application for costs was withdrawn and dismissed during the hearing on 23 February 2024 with no order for costs.

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Decision last updated: 12 March 2024