Bennette v Byron City Council - [2001] NSWLEC 184

Reported Decision: 116 LGERA 235

Land and Environment Court

of New South Wales

CITATION: Bennette v Byron City Council [2001] NSWLEC 184

PARTIES:
APPLICANT:
Bennette
RESPONDENT:
Byron City Council

FILE NUMBER(S): 10216 of 1997

CORAM: Bignold J

KEY ISSUES: Costs :- Discontinuance of planning appeal on eve of fixed hearing dates-Conduct of parties in litigation.

LEGISLATION CITED: Land and Environment Court Rules, Pt 11 r 5

CASES CITED: Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370;
Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245 ;
Menangle Sand and Soil Pty Ltd v Wingecarribee Shire Council (2000) 108 LGERA 209 ;
Michael Bald and Associates v Byron Council (1999) NSWLEC

DATES OF HEARING: 24/11/00, 27/11/00, 12/12/00, 09/01/01, 4/05/01 Written submissions

DATE OF JUDGMENT:
08/14/2001

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Webster, Barrister
SOLICITORS
Stacks the Law Firm with Halliday & Stainlay
RESPONDENT:
Mr J Johnston, Barrister
SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND

Matter No. 10216 of 1997

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

14 August 2001

J L BENNETTE

Applicant

BYRON CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. The Respondent (the Council) seeks an order for costs in these Class 1 proceedings which were concluded by the Applicant’s discontinuance of the proceedings on 21 January 2000 immediately following the refusal by Talbot J of the Applicant’s application to vacate hearing dates that had been fixed for the proceedings (scheduled to commence on the next sitting day of the Court). The discontinuance was effected without the consent of the Council which foreshadowed its application for costs in the proceedings.

2. It was in these circumstances that Talbot J directed the Applicant to file a notice of discontinuance within 7 days and granted the Council liberty to restore to the Court’s list the question of costs in the proceedings.

3. Thereafter, the Applicant filed a Notice of Discontinuance bearing an endorsement that the discontinuance “was subject to the reservation of the question of costs in the proceedings” and subsequently the Council restored that question to the Court’s list.

4. The Council’s application for costs in the proceedings has been opposed by the Applicant and the parties have, by consent, presented their respective cases by written submissions supported by affidavits sworn by their respective Solicitors, which principally narrate the long and detailed history of this litigation.

5. The Council’s application for costs is founded upon the Rules of Court Pt 11 r 5(1) which provides as follows:

If a party to any proceedings discontinues them in whole or in part, the Court may, on the application of another party, order the discontinuing party to pay the costs of any party against whom the discontinued claim was brought who does not consent to the discontinuance.

B. THE RELEVANT PRINCIPLES FOR THE EXERCISE OF THE COURT’S DISCRETION ON COSTS WHERE PROCEEDINGS ARE DISCONTINUED

6. The parties’ competing submissions commonly adopt the line of authority that is well established by relevant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWLEC 184
Decision Date: 08/14/2001

CaseChat Overview and Summary

Bennette v Byron City Council is a case where the Land and Environment Court of New South Wales was asked to decide on a matter of costs after the applicant, Bennette, discontinued the planning appeal proceedings against the Byron City Council on the eve of the fixed hearing dates. The central issue in this case was whether the Council was entitled to costs following the discontinuance of the proceedings by the Applicant. The Court had to consider the legal principles governing the discontinuance of proceedings and whether any exceptional circumstances existed that would negate the usual costs consequences of a discontinuance.

The Court found that, based on established legal principles, the Applicant's discontinuance of the proceedings without consent from the Council typically justifies an order for costs against the discontinuing party. The Applicant argued that the discontinuance was due to the Council's alleged failure to fully comply with a subpoena and the late raising of a jurisdictional issue. However, the Court found these arguments unsubstantiated and held that the Council's conduct did not amount to disentitling misconduct. Additionally, the Court did not find that the subsequent successful planning appeal by the Applicant, which was related to the same development site, had any bearing on the discontinuance of the earlier proceedings or the usual costs order that followed a discontinuance.

Ultimately, the Court ruled that the Applicant should pay the Council's costs incurred up to the discontinuance of the proceedings on 21 January 2000, along with the costs of the Council's application for costs. The amount was to be agreed upon by the parties, or if an agreement could not be reached, assessed by the Court.

Orders