Byron Shire Council v Vigden C J and Donna's Beach Pty Limited

[1999] NSWLEC 285

Land and Environment Court

of New South Wales

CITATION:

Byron Shire Council v Vigden C J & Donna's Beach Pty Limited [1999] NSWLEC 285

This judgment revised on:

01/25/2000

PARTIES

PROSECUTOR
Byron Shire Council

DEFENDANT
Vigden C J & Donna's Beach Pty Limited

NUMBER:

50148-9 & 50150-1 of 1998

CORAM:

Cowdroy J

KEY ISSUES:

Costs; Jurisdiction :- prosecutions dismissed - subsequent motion filed seeking a stated case - court functus officio - motion dismissed - application for costs - court lacking jurisdiction to make costs order

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979 s 52
Federal Court Act of Australia 1976 s 43(1)
Judiciary Act 1903 s 26

DATES OF HEARING:

10/22/1999

DATE OF JUDGMENT DELIVERY:

12/23/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr W Davison SC

SOLICITORS
Wroth Wall

DEFENDANT
Mr J Webster (Barrister)

SOLICITORS
Halliday & Stainley

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 50148-9/98,
50150-1/98
CORAM: Cowdroy J
DECISION DATE: 23/12/99

Byron Shire Council

Applicant

v

Vigden C J & Donna’s Beach Pty Limited

Respondent

JUDGMENT

1. This is an application by the respondents for an order that Byron Shire Council (“the prosecutor”) pay the costs of these proceedings.

2. By judgment dated 1 June 1999 the Court determined that the defendants had established their entitlement for a permanent stay of the proceedings. However, in view of the fact that the proceedings could not be revived they were dismissed and an order for costs made in favour of the defendants.

3. On 16 June 1999 the prosecutor filed a notice of motion seeking an order that a case be stated to the Court of Criminal Appeal. By judgment delivered on 8 September 1999 this Court determined that it was functus officio and dismissed the notice of motion. The question of costs of that motion was stood over for argument and is the subject of this judgment.

Prosecutor’s submissions

4. The prosecutor submits that the power to award costs is confined by the provisions of s 52 of the Land and Environment Court Act 1979 (“the Court Act”). Section 52(1) provides:-

52 (1) Where a Judge:

(a) convicts any person of an offence punishable in the summary jurisdiction of the Court;

(b) makes an order dismissing the charge for any such offence; or

(c) makes an order under section 556A(1) of the Crimes Act 1900, in respect of any such offence,

the Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c), to pay to the prosecutor, or, in the case of an order referred to in paragraph (b), order the prosecutor to pay to the defendant, costs of such amount as are specified in the conviction or order or, if the conviction or order so directs, as may be determined under subsection (2).

The prosecutor submits that an order for dismissal of proceedings may only be made following the hearing of a charge. It is submitted that since the proceedings were permanently stayed and not dismissed the Court has no power to make an order for costs. No authority has been cited for such proposition and no detailed submissions were made in support.

5. There is no merit in the prosecutor’s submission. The dismissal of the proceedings was the result of a hearing by the Court concerning the conduct of the prosecutor. There is no requirement contained in s 52(b) that the Court can only make an order for dismissal following a hearing.

Lack of jurisdiction

6. There is however another reason for the Court to make no order as to costs, namely lack of jurisdiction.

7. The Court is a creature of statute. It is a superior Court of record, but its powers are confined to those bestowed upon it by the provisions of the Land and Environment Court Act 1979 (“the Court Act”) (see Kirby P in Logwon Pty Limited v Warringah Shire Council (1993) 33 NSWLR 13 at 17). Its power to award costs in respect of criminal proceedings are limited by the provisions of s 52 of the Court Act.

8. In respect of the motion for which costs are sought, the Court found that since the proceedings were already dismissed it was functus officio and accordingly had no jurisdiction to make any order in respect of the relief claimed in the motion.

9. It must follow that if the court was functus as at 16 June 1999 it has no power to make an order for costs. To do so would be of itself an exercise of jurisdiction which the Court does not possess.

10. In Plumb v Comcare (1992) 39 FCR 236 the Full Federal Court was confronted by a similar issue. In that case the appellant sought an award for costs in relation to a matter heard by the Administrative Appeals Tribunal (“the ATT”). In that matter the ATT determined it was functus officio. In a judgment in which Black CJ and Gummow J concurred, Lockhart J (at 239 - 240) found that there was no jurisdiction to make an order for costs. The power of the ATT (and of the Full Federal Court on Appeal) to award costs in the subject proceedings arose from s 67 of the Commonwealth Employees Rehabilitation and Compensation Act 1988. Since the ATT was functus officio, its jurisdiction as to costs could not be enlivened.

11. Section 52 of the Court Act makes no mention of power to award costs in the circumstance where the Court has no jurisdiction to hear the matter. The power of the Court may be contrasted with the power given to other statutory courts to award costs in the same circumstances. For example the Federal Court of Australia Act 1976 s 43(1) thereof provides:-

43 (1) The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.

Section 26 of the Judiciary Act 1903 provides:-

26 . The High Court and every Justice thereof sitting in Chambers shall have jurisdiction to award costs in all matters brought before the Court, including matters dismissed for want of jurisdiction.

In Willcocks v Anderson (1971) 124 CLR 293 at 300, the High Court of Australia (Barwick CJ, Menzies, Windeyer, Owen, Walsh and Gibbs JJ) held that the High Court had ‘ample power’ to make an appropriate order with regard to the costs of the proceedings even though the Court did not have jurisdiction to grant the relief sought. Such conclusion must follow from the power given to that Court by the Judiciary Act 1903. In Obacelo Pty Ltd and Anor v Taveraft Pty Ltd (1985) 5 FCR 210 at 218, Wilcox J found that the power of the Federal Court to award costs in relation to a matter for which it had no jurisdiction is found in s 43 of the Federal Court of Australia Act 1976.

12. The Court Act contains no equivalent provision to either of the above Commonwealth statutes to enable this Court to award costs in proceedings dismissed for want of jurisdiction.

13. The Court therefore makes no order for costs in respect of the notice of motion filed on 16 June 1999.

14. The conclusion reached in these proceedings suggests that attention should be given to an amendment of s 52 and s 69 of the Court Act to enable the Court to make an order for costs of proceedings in which it has no jurisdiction.