Bevillesta Pty Ltd v Parramatta City Council

[1988] NSWLEC 124

Land and Environment Court

of New South Wales

CITATION:	Bevillesta Pty Ltd v Parramatta City Council [1988] NSWLEC 124
PARTIES:	APPICANT Bevillesta Ply Ltd RESPONDANT Parramatta City Council
FILE NUMBER(S):	10602 of 1987
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:	E.S. Turnbull Pty. Limited v. Wollongong City Council
DATES OF HEARING:	17/12/1987, 23/12/1987
DATE OF JUDGMENT:	06/21/1988
LEGAL REPRESENTATIVES:	APPLICANT Mr. Molloy RESPONDENT Mr. Neustein Mr. Laffer Mr. Hassall Mr. Tillott

JUDGMENT:

Bignold J.: The Respondent seeks an order for costs in respect of class 1 proceedings which it was defending and which proceedings were terminated on 11th April, 1988 when the Applicant, without prior notice, withdrew its appeal at the commencement of the hearing.

The hearing had been specially fixed for 11th-13th April, 1988 at a call-over conducted by the Registrar on 18th March, 1988. In fact this was the second occasion that the proceedings had been specially fixed for hearing. At the first call-over conducted on 17th December, 1987 (following the lodging of the appeal on 2nd December, 1987) the Registrar specially fixed the hearing for 22nd and 23rd February, 1987. At that call-over the Applicant had indicated that it would be calling two experts being an architect and an expert with special skills in building sun-screen applications and the Respondent had indicated that it would be calling a Building Consultant (Mr. Hassall) and one of its employed Town Planners (Mr. Tillott).

On 17th February, 1988 the Applicant filed a Notice of Motion seeking the vacation of the hearing fixed for 22nd and 23rd February, 1988.

On 19th February, 1988 the Duty Judge vacated the hearing and ordered the Applicant to pay the Respondent's costs incurred by virtue of the vacation of the hearing.

On that occasion the basis for seeking the vacation of the hearing was the fact that the parties were actively negotiating and seeking to resolve the dispute without the necessity for litigation. Although the Respondent did not oppose the Motion it sought its costs thrown away. The Applicant opposed any order for costs on the basis that the Respondent had not complied with the Court's Practice Direction in relation to the filing and exchange of expert reports. As I have noted the Duty Judge ordered costs against the Applicant.

Although the Court's policy or practice is not to award costs in class 1 or 2 proceedings save in exceptional circumstances different considerations apply where an appeal is belatedly withdrawn or discontinued. In such circumstances where the non-withdrawing party has come to Court prepared to defend the appeal, as has the Respondent in the present case, it is usual for the Court to award it the costs thrown away by the belated withdrawal.

In the present case the Applicant resists the usual costs order solely on the ground of the Respondent's non-compliance with the Court's Practice Direction in respect of the filing and exchange before the hearing, of expert reports. The Practice Direction is in the following terms:-

"Where expert evidence is to be called in a case, that evidence in written form must be filed with the Court and delivered to the opposing party no later than 14 days prior to the listed hearing date."

The only expert report prepared on behalf of the Respondent that was filed and delivered in accordance with the Practice Direction was the report of Mr. Tillott (Town Planner). On the Friday preceding the Monday (being the first day of the hearing) additional expert reports were delivered to the Applicant. These were reports of -

(i) Michael Neustein - Consultant Architect and Town Planner;

(ii) David Hassall - Lecturer School of Building University of NSW; and

(iii) Steven Laffer - Project Engineer.

The Applicant had, conformably to the Practice Direction, filed and delivered on 28th March, 1988 its expert reports.

In relying upon the Respondent's non-compliance with the Practice Direction as disentitling the Respondent to an order for costs the Applicant draws attention to the fact that when its Motion to Vacate the original hearing dates was adjudicated by the Duty Judge the Respondent had informed the Court that it was prepared to conduct its case on the dates fixed for hearing at a time when the only expert report it had filed was that of Mr. Tillott.

The present case highlights the difficulties that can arise with the application of the Court's Practice Direction where it is breached by either or both parties to the proceedings.

Recently Stein J. in E.S. Turnbull Pty. Limited v. Wollongong City Council (unreported 3rd May, 1988) stated:-

"Mr. Kerr places reliance on the Practice Direction. Of course, compliance with the Direction may be waived by the Rules and I would respectfully agree with the comments made by the Assessor on observance of the Direction. It should also be emphasised that pursuant to the Direction the Statements of experts are not to be filed by one side and then replied to by the other - rather they are to be exchanged."

(The relevant comments of the Assessor (whose decision was the subject of appeal to Stein J.) were to the effect that the practice direction is more honoured in the breach).

These remarks are supported by what apparently fell from the Chief Judge when His Honour was the Duty Judge determining the Applicant's aforesaid Notice of Motion to vacate the hearing as originally fixed. (Although I do not have the official transcript of those proceedings Mr. Molloy Solicitor for the Applicant has provided a 'rough' transcript).

The Applicant's argument that there should be no order as to costs encounters the obvious difficulty that its decision to withdraw the appeal effectively pre-empts the decision as to whether despite the Respondent's non-compliance with the Practice Direction the Court hearing the appeal would have received into evidence the expert testimony relied upon by the Respondent. It would have been open to the Applicant to object to the expert testimony on account of the non-compliance with the Practice Direction. For reasons that are best known to itself it did not choose this course of action. Although in the course of argument before me the Applicant stated that the escalation of expert testimony rendered the "economics of the (appeal) exercise hopeless" it must be remembered that the appeal had been specially fixed for hearing over 3 days and that the Applicant had filed its expert reports in accordance with the Practice Direction. In these circumstances it is not clear to me precisely how and why the exercise had

become hopeless. Indeed this unexplained feature of the case inevitably raises doubt whether it was the Respondent's belated delivery of additional expert reports that caused the Applicant to decide to withdraw its appeal, a doubt that is strengthened by the fact that the Applicant did not before withdrawing the appeal, seek to have the belated expert material excluded from the case.

Just as the Respondent's non-compliance with the Practice Direction did not prove a stumbling block to its application for costs thrown away by the Applicant's application to vacate the hearing as originally fixed so here I am of the opinion that the Respondent is entitled to receive most of its costs thrown away by the Applicant's withdrawal of its appeal in the manner I have earlier outlined. However I do not think that the Respondent should receive all of its costs in relation to all of the expert reports it filed so belatedly in the proceedings. Otherwise the strong impression would be given to litigants that they can ignore with impunity the Court's Practice Direction.

Nothwithstanding the present uncertainty in the Court as to the consequences (in costs or otherwise) of non-compliance with the Court's Practice Direction concerning expert reports I consider the Respondent's non-compliance in the present case, constitutes an element (not substantial but nonetheless serious) of misconduct in the litigation that should be appropriately reflected in the costs order I think is justified in the present case. (Misconduct in the litigation is, of course, an established ground for depriving a successful litigant of some or all of its costs).

Accordingly I propose to exclude from the costs order all costs associated with the expert reports and proposed testimony of Mr. Neustein and Mr. Laffer. There had not been any previous indication of the Respondent's intention to rely on these witnesses in the extensive lead-up to the hearing. The somewhat unusual nature of the issue raised by the appeal did not, in my opinion, justify overloading the case with expert testimony.

Accordingly I order the Applicant to pay the Respondent's costs thrown away by the Applicant's withdrawal of the appeal, excluding costs referable to the expert reports prepared by Mr. Neustein and Mr. Laffer and to their attendance as witnesses.