Carver v Bankstown City Council

[1999] NSWLEC 130

Land and Environment Court

of New South Wales

CITATION:	Carver & Anor v Bankstown City Council [1999] NSWLEC 130
PARTIES	Applicants Peter George Star Carver and Maxwell Thomas Parker
Respondent Bankstown City Council
NUMBER:	40153 of 1998
CORAM:	Sheahan J
KEY ISSUES:	Costs :- in Class 4 - indemnity costs - party-party costs - public interest litigation
LEGISLATION CITED:
DATES OF HEARING:	04/27/1999
EX TEMPORE JUDGMENT DATE:	04/27/1999
LEGAL REPRESENTATIVES:	Applicants Mr A Hyam, Barrister Solicitor Mr Tony Giurissevich Respondent Mr Dennis Wilson, Barrister Solicitors Mr Adam Seton of Marsdens

JUDGMENT:

IN THE LAND AND Matter No: 40153 of 1998

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 27 April 1999

PETER GEORGE STAR CARVER and

MAXWELL THOMAS PARKER

Applicants

v

BANKSTOWN CITY COUNCIL

Respondent

JUDGMENT

1. This matter came before me again this morning, but I need not repeat all that I said on 22 February, when I recounted its history.

2. These proceedings stand in the name now of two councillors, out of an original three, who remain extremely unhappy with the course of action followed by their council in the aftermath of the destruction by fire on 1 July 1997 of the Bankstown Civic Centre.

3. The class 4 application was filed within a week of the key council resolution of 28 July 1998, but, on 12 August 1998, Lloyd J refused interlocutory relief on the basis of his crucial threshold finding that the evidence then assembled by the applicants did not satisfy him that they had a serious question to be tried.

4. It is fair to say that the two applicants who remained after his Honour's decision have done very little to prosecute these proceedings since they filed their points of claim on 28 October 1998.

5. The council filed its points of defence on 5 November 1998 and its major affidavit on 4 December 1998. The points of defence denied the points of claim in their entirety and Mr Wilson, Counsel for the Council, submits that the affidavit of Mr Dunn dated 4 December completely answered them.

6. The applicants thereafter shifted their attack on the council to an allegation of contempt in respect of the demolition of the remaining foundations of the Civic Centre some time very late in 1998 or early in 1999. (I cannot find in the evidence a firm date). The applicants, in any event, conceded, by early February, that the substantive proceedings had by then ceased to have any utility.

7. The proceedings were discontinued by the filing in Court this morning of the applicants’ notice of discontinuance, without the consent of the respondent, but bearing the date 15 February 1999, which I note to be one week prior to the earlier hearing before me, during which Mr Hyam, Counsel for the applicants, said that the proceedings would be discontinued " in due course ".

8. These proceedings having now been discontinued, and there being in them no order made by the Court in respect of which the Court could hold the respondent in contempt, the notice of motion filed on 15 February, alleging contempt by reason of " destroying the subject matter of the hearing ", must have no further force.

9. I have declined leave to file, this morning, an amended notice of motion in these proceedings alleging contempt on the part of the respondent, in that, not only the respondent, but also " the mayor, councillors and the general manager and/or officers of council" conducted themselves in a manner allegedly "calculated to inhibit the applicants from availing themselves, [sic] their right to have their legal rights and obligations ascertained and enforced in this Court ".

10. There is some authority to support the proposition that contempt proceedings may lie, in some cases and in certain circumstances, on such grounds, but I make no finding at this stage, as I am clearly of the view that such contempt allegations cannot now be dealt with in these proceedings. Separate proceedings are contemplated and I will say no more about the matter.

11. The remaining issue, therefore, is the question of the costs of the substantive proceedings.

12. The only order so far made as to costs is that made by Pearlman J on 29 October 1998, that the applicants should pay the respondent's costs of that day.

13. Mr Hyam relies on Oshlack v Richmond River Council , (1998) 193 CLR 72, to support a request that no costs order be made as these were “ public interest proceedings ”.

14. I am satisfied that the proceedings attracted the public interest, but that is, of itself, not enough to justify departure from what is the usual order in discontinued class 4 proceedings, namely that the discontinuing applicants should pay the respondent's costs.

15. I adopt, without discussing the details, the reasoning of Talbot J in Timbarra Protection Coalition Incorporated v Ross River Mining NL and Others (matter 40222/97, judgment dated 15 May 1998) and in Balcombe v Nambucca Shire Council and Others (40256/97, judgment dated 13 November 1998); the judgments of Pearlman J in North Cronulla Precinct Committee Incorporated v Sutherland Shire Council (40098/97, judgment dated 29 July 1998) and in Save the Showground for Sydney Incorporated v the Minister for Urban Affairs and Planning (40256/95, 26 November 1998); and the reasoning also of Bignold J in one of the Hayden Theatres cases, being matter 40302/96 (judgment dated 1 October 1998).

16. Those authorities make clear that the applicants in this matter must pay the respondent's costs.

17. The respondent, however, seeks an order for indemnity costs and I have taken some time to review the principles upon which indemnity costs might be ordered.

18. The basic principle is that laid down by Sir Edward Woodward of the Federal Court in Fountain Select Meats Sales Pty Limited v International Produce Merchants Pty Limited (1988) 81 ALR 397, where his Honour held that indemnity costs should be considered when proceedings are manifestly hopeless or demonstrably devoid of merit.

19. His Honour said:

" I believe it is appropriate to consider rewarding ‘solicitor and client’ or ‘indemnity’ costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court would need to consider how it should exercise its unfettered discretion ”.

20. I have also had regard to the judgment of Holland J in Degmam Pty Limited v Wright(No.2) (1983) 2 NSWLR 354. His Honour later became an acting judge of this Court.

21. I surveyed the principles of indemnity costs in my judgment in McKinnon v Hallbridge Pty Limited (30148/97, judgment delivered 10 July 1998), the Chief Judge dealt with the issue in Armidale City Council v Connell (40197/95, judgment delivered 14 April 1997) and Bignold J similarly dealt with the matter in Morris v Gosford Council and Others (40150/96 judgment being dated 29 November 1996).

22. On the basis of the principles outlined in those cases, it would not be beyond the reasoning in those cases that the applicant should be ordered to pay costs on an indemnity basis, in respect of all events since any one of three particular dates:

(a) the decision of Lloyd J on 12 March 1998,
(b) such date as the applicants may have had the benefit of advice on the ramifications of Mr Dunn's affidavit of 4 December 1998, or
(c) when the futility of the proceedings was established beyond any shadow of a doubt by the demolition of the remaining foundations.

23. As the only evidence I have is some evidence in an affidavit to suggest that the demolition occurred during the Christmas holiday period 1998-1999, I have decided to exercise my discretion on the question of costs to order that the applicants should pay the respondent's costs on an indemnity basis in respect of all actions taken in the matter after 31 January 1999.

The order of the Court, therefore, will be that the applicants should pay the respondent's costs on a normal party and party basis from the commencement of the proceedings until and including 31 January 1999, and on an indemnity basis thereafter.