Chris Lonergan & Associates v Byron Shire Council

[1998] NSWLEC 78

Land and Environment Court

of New South Wales

CITATION:	CHRIS LONERGAN & ASSOCIATES v. BYRON SHIRE COUNCIL [1998] NSWLEC 78 (27 April 1998) [1998] NSWLEC 46
PARTIES:	CHRIS LONERGAN & ASSOCIATES v. BYRON SHIRE COUNCIL [1998] NSWLEC 78 (27 April 1998)
FILE NUMBER(S):	10268 of 1997
CORAM:	Pearlman J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act 1979 s 69 Land and Environment Court Practice Direction 1996 cl 10
CASES CITED:	Manly Wharf Pty Limited v Manly Council (Bignold J, 21 October 1997, unreported; McColl v Gosford City Council (24 February 1995, unreported; Legge and Anor v Wingecarribee Shire Council (Lloyd J, 21 March 1997, unreported; Bryant v Lismore City Council (Talbot J, 4 July 1997, unreported
DATES OF HEARING:	27 April 1998
DATE OF JUDGMENT:	04/27/1998
LEGAL REPRESENTATIVES:	Mr I J Hemmings, Barrister Mr J E Hannaford, Solicitor

JUDGMENT:

4

By notice of motion filed on 8 April 1998 the council seeks the payment of its costs by the applicant. It makes that application supported by two affidavits of Mr Hannaford who acts for the council. The applicant opposes that costs order and relies on his own affidavit.

The facts are these. On 16 February 1996 a development application was lodged by the applicant on behalf of his client. That development application was refused as set out in the s 92 notice of 13 May 1996. On 9 May 1997 a second development application was lodged with the council. Accordingly, there have been two development applications, one of which, at the time these proceedings had commenced, had been refused. These proceedings were commenced on 12 May 1997. Subsequently the second development application was refused.

The appeal in relation to the first development application was set down for hearing by telephone call-over on 18 November 1997. There was a change in the date for hearing. It was not a significant change, and it resulted in some negotiations between various solicitors concerned with hearings in the Byron Bay area. The actual date for hearing was to be 1 and 2 April 1998 at Byron Bay.

On 18 March 1998 the applicant filed a notice of motion seeking vacation of the hearing dates. That came on for hearing before me on 24 March 1998. The notice of motion was dismissed and the application for vacation of dates was refused. On 25 March 1998 the applicant filed a notice of discontinuance of its appeal in relation to the first development application.
Section 69 of the Land and Environment Court Act 1979 confers upon the Court a wide discretion in the awarding of costs. In this Court, the awarding of costs in class 1 and 2 matters is governed by cl 10 of Practice Direction 1996, which provides that in planning and building appeals costs will not be awarded except in exceptional circumstances.

My attention was drawn to Manly Wharf Pty Limited v Manly Council (Bignold J, 21 October 1997, unreported). I do not take that case as authority for the proposition that a discontinuance of proceedings is always an exceptional circumstance entitling the non-discontinuing party to an award of costs in its favour. That seems clear from pp 9 and 10 of the judgment where his Honour discussed a possible rule that ordinarily costs will be awarded against a discontinuing party because the discontinued proceedings operate as exceptional circumstances. But his Honour went on to mention other circumstances where that rule (if it was a rule) would not be applied.

I think the principle which applies in these cases is the one that has been routinely applied by the Court. That principle is to look for exceptional circumstances as founding an award of costs. That was the course I followed in McColl v Gosford City Council (24 February 1995, unreported). It was the course that was followed by Lloyd J in F C Legge and Anor v Wingecarribee Shire Council (Lloyd J, 21 March 1997, unreported) and by Talbot J in Bryant v Lismore City Council (Talbot J, 4 July 1997, unreported). In each of those cases, the judges concerned have looked at the facts to determine if those facts constitute exceptional circumstances so as to ground an award of costs within the meaning of the Practice Direction.

Another relevant principle is that costs are compensatory, they are not awarded by way of punishment. It is irrelevant and unhelpful to look at attributing blame in the conduct of the proceedings and indeed it is largely irrelevant to look at the conduct of the parties, except so far as that conduct in itself constitutes exceptional circumstances.

The task of the Court is to look at the facts and determine if those facts constitute exceptional circumstances so as to justify an award of costs.

In this case, Mr Hannaford, for the council, has submitted that exceptional circumstances exist. He submitted that those circumstances are the delay and dilatoriness on the part of the applicant. Mr Hannaford submitted that, for a period of approximately four months between the time the case was set down for hearing on 18 November 1997 until 18 March 1998, the applicant did nothing in the preparation of his case. On the other hand, the council prepared its case, operating in the mistaken belief, as matters turned out, that the applicant was vigorously pursuing his appeal in that period. The council obtained statements of evidence or expert reports from four relevant persons, and it acted to instruct its legal advisers as though the case was to be heard on 1 and 2 April.

The facts were, however, during that period, the applicant was not preparing his case. He was under a misapprehension, as the affidavits show, that solicitors had been instructed and that they had filed a notice of appearance and otherwise acted in the preparation of the case. In fact that was not so. On 17 March 1998, the applicant received files from those solicitors which indicated that nothing had been done.

In the submission of Mr Hemmings, who appears for the applicant, the applicant acted promptly thereafter in that he prepared and filed a notice of motion to vacate the hearing dates.

Mr Hemmings’ submission is that these matters do not constitute exceptional circumstances. His submission was that if delay and dilatoriness were to be matters upon which the Court would base a finding of exceptional circumstances, then there was a disentitling matter in that the statement of issues was filed late by the council. He submitted that there was some contribution by the council to any delay that took place. Had the statement of issues been filed earlier, Mr Hemmings said, then the applicant would have been in a position at least to know that his solicitors were not doing anything in preparation of the case.

It seems to me that the circumstances which I have set out are not exceptional circumstances. What has happened in this case, is that an applicant has lodged an appeal, and has not pursued it with the vigour with which the applicant could perhaps have pursued it. In circumstances where the applicant was aware that the crucial expert witness upon whom he relied - (an expert sound consultant, Mr Ray Sergeant) - was not available at the hearing date, and that no other preparation had been made, the applicant discontinued the proceedings.

It is not unusual for the council to file a statement of issues without much alacrity. It is not unusual for the council to set about preparing a case, and then be faced with a discontinuance.
Nor do I think that the fact that there is another appeal now on foot arising out of a development application in relation to the same development upon the same land, is either exceptional, or would disentitle a finding of exceptional circumstances. I think it is simply irrelevant.

I am not prepared to hold, on the evidence before me, that the costs incurred by the council will be utilised in the second appeal. That is totally uncertain, and I do not think that it is an exceptional circumstance.

I think that this is simply a case where matters have proceeded in a way that has led to a discontinuance. I do not think any of the circumstances were exceptional which would ground an award of costs. I conclude that both parties should pay their own costs. Accordingly, my formal order is that the notice of motion is dismissed.

I do not propose to make an order for costs in relation to today’s notice of motion. I repeat, costs are compensatory. In view of the judgment of Bignold J in Manly Wharf Pty Limited, to which I have earlier referred, it was not exceptional that the council should bring an application for costs. It is in these circumstances I think well within my discretion to say that costs should not be awarded in this case in relation to the notice of motion.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 3 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.

Associate