Coffs Harbour City Council v West

[2017] NSWLEC 94

Land and Environment Court

New South Wales

Medium Neutral Citation:	Coffs Harbour City Council v West [2017] NSWLEC 94
Hearing dates:	31 May 2017
Date of orders:	28 July 2017
Decision date:	28 July 2017
Jurisdiction:	Class 4
Before:	Molesworth AJ
Decision:	See paragraph [53]
Catchwords:	COSTS – civil enforcement proceedings – consent of respondent during hearing to the Court making final orders substantially similar to the orders sought by applicant in summons – whether respondent should pay the applicant’s costs of proceedings – approach to costs when proceedings conclude by consent orders during hearing – relevance of respondent’s hardship to the making of costs order
Legislation Cited:	Civil Procedure Act 2005, s 98 Land and Environment Court Act 1979, s 63 Land and Environment Court Rules 2007, r 7.7 Local Government Act 1993, ss 124, 678 Uniform Civil Procedure Rules 2005, r 42.1, Pt 42
Cases Cited:	Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232 Hooper v Port Stephens Council (No 3) (2010) 176 LGERA 97; [2010] NSWLEC 178 Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130 Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 Kurnell Lodge Pty Ltd v Bourne [2004] NSWLEC 329 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Manly Council v Kelly [2005] NSWLEC 685 Michales v Dimoski (No 2) [2007] NSWLEC 591 Newcastle City Council v Winwood [2005] NSWLEC 294 North Sydney Council v Wouters [2012] NSWLEC 94 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Pittwater Council v Varney [2005] NSWLEC 651 Warringah Council v Ulrich [2012] NSWLEC 234 Wollondilly Shire Council v Anh Nhu Le (2004) 137 LGERA 416; [2004] NSWLEC 524
Texts Cited:	Ritchie’s Uniform Civil Procedure NSW
Category:	Costs
Parties:	Coffs Harbour City Council (Applicant) Warren John West (Respondent)
Representation:	Counsel: Mr M Cottom (solicitor) (Applicant) Ms L West and Ms J West (agents) (Respondent)   Solicitors: HWL Ebsworth Lawyers (Applicant) N/A
File Number(s):	2016/00359057
Publication restriction:	No

Judgment

A council seeks its costs in civil enforcement proceedings

1. Mr Warren John West (‘the Respondent’) is the registered proprietor of low-density residential land in Coffs Harbour, being Lot C in Deposited Plan 408189 (‘the Land’). On 6 September 2016, Coffs Harbour City Council (‘Coffs Harbour Council’) ordered the Respondent, pursuant to s 124 of the Local Government Act 1993, to remove and lawfully dispose of a wide array of waste stored around the single-storey dwelling and shed on the Land (‘the s 124 Order’). The alleged waste which was the subject of the s 124 Order included: garbage, unregistered motor vehicles, car parts, scrap metal, building materials and “other loose items in a poor state of repair”.

2. On 30 November 2016, Coffs Harbour Council commenced civil enforcement proceedings against the Respondent by way of summons. Coffs Harbour Council sought a declaration that the Respondent was in breach of the s 124 Order and also sought consequential orders requiring the Respondent (or, in default, Coffs Harbour Council) to remove and lawfully dispose of the waste on the Land. It should be noted that Coffs Harbour Council also sought “[a]n order that the respondent pay the applicant’s costs of the proceedings”.

3. As will be explained in more detail below, in the course of the hearing of the proceedings on 31 May 2017, the Court made orders, by consent, in terms of the orders agreed between the parties (‘the Court Orders’). The Court Orders included, inter alia, an order that the waste material be removed from the Land within 42 days. Whilst the Court Orders disposed of the substantive issues in the proceedings, the parties were unable to reach agreement as to the costs of the proceedings. After hearing the respective submissions of the parties, the Court reserved its judgment as to costs and indicated to the parties that judgment would not be delivered until after the expiry of 42 days, allowing for the completion of the period specified for the Respondent to comply with the Court Orders.

4. In order to properly contextualise the Court’s judgment as to the costs of these proceedings, it is necessary to set out the history and salient details of these proceedings.

The history of the proceedings

5. As has been stated above, Coffs Harbour Council commenced these civil enforcement proceedings by way of summons filed on 30 November 2016. At the first directions hearing for the proceedings, on 3 February 2017, the Respondent did not appear. This directions hearing concluded with the Court making orders in accordance with Coffs Harbour Council’s short minutes of order, which substantially reflected the usual directions at the first directions hearing of civil enforcement proceedings.

6. At the second directions hearing, on 31 March 2017, the List Judge granted leave for the parties to approach the Registrar for a hearing date. The Respondent participated in this directions hearing by telephone. Later that day, the Registrar listed the matter for hearing on 31 May 2017. Additionally, the List Judge then directed (later on 31 March 2017) that a pre-trial mention, by telephone, be listed for 17 May 2017.

7. On 17 May 2017, this pre-trial mention came before the Court with both the Respondent (who was self-represented) and Coffs Harbour Council’s solicitor participating by telephone. In the course of this pre-trial mention, the Respondent confirmed that he opposed the Court granting the relief sought by Coffs Harbour Council and would not be obtaining legal representation. Throughout the mention, there was nothing to indicate to the Court that the Respondent was not able to represent himself at the hearing. The Court noted during the pre-trial mention that the Respondent’s wife, Ms Jasmine West, was present (Transcript, p 3).

8. At the conclusion of this mention, the Court directed, by consent, that: the Applicant be entitled to conduct a site inspection of the Land on 22 May 2017 to determine any changes to the condition of the Land; the Applicant file and serve any further affidavit relating to this inspection by 24 May 2017; and that the hearing of the matter on 31 May 2017 commence with an on-site view at 9.30am.

9. Immediately prior to the commencement of the on-site view, at 9.30am on 31 May 2017, the Court – after having arrived at the Land – was informed by Ms Leanne West that the Respondent was unable to leave his bedroom because he was suffering from significantly poor health associated with pre-existing medical conditions. This situation was also confirmed by Ms Jasmine West, who came out of the residence. In these circumstances, the Court was notified that the Respondent intended to appoint his mother, Ms Leanne West, and his wife, Ms Jasmine West, as his agents for the on-site view and hearing.

10. In support of the Respondent’s application for the Court to grant leave to permit the Respondent to be so represented, the Respondent’s mother and wife provided the Court with a document signed and dated by the Respondent. This document stated “I the respondent, Warren John West, hereby appoint Leanne West (my mother) and Jasmine West (my wife) to appear as my agent in these proceedings”. Moreover, the Respondent directly confirmed to the Court, via mobile telephone (with the Court standing outside the dwelling on the Land and the Respondent necessarily in his bedroom within the residence), that (1) he had been provided with the requisite information (by his mother and wife) contained within r 7.7 of the Land and Environment Court Rules 2007 and (2) that he believed that it was in his best interests to be represented by his mother and wife. Finally, at the request of the Court, the identity of Mr West was confirmed by the Court cross-checking the signature of Mr West against that of Mr West’s Commonwealth Bank Mastercard bank card.

11. After considering all of the relevant matters, the Court – pursuant to s 63 of the Land and Environment Court Act 1979 – granted leave for the Respondent to be represented by his mother and wife, as his agents. The Court granted this leave because it was satisfied both that the Respondent had been provided with the requisite information under the Land and Environment Court Rules 2007 and that it was in the Respondent’s best interests to be so represented. I interpose here to note that one of the matters that was brought to the Respondent’s attention, in being provided with rule 7.7 of the Land and Environment Court Rules 2007, was that of limb (e): “that the Court may make a costs order against the person in proceedings to which rule 3.7 applies if the Court considers it fair and reasonable in the circumstances and in any other proceedings if the person is unsuccessful”. I note that rule 3.7 does not apply in these proceedings.

12. Following the short view of the Land, the hearing commenced at the Coffs Harbour Court House with the Court explaining the normal process of a Class 4 court hearing to the Respondent’s agents. Additionally, the Court confirmed with the Respondent’s agents that the relevant court documents had been served upon the Respondent (Transcript, p 3). Coffs Harbour Council then proceeded to make brief opening submissions, which amounted to an outline of the relief sought in these proceedings. After this opening, Leanne West explained to the Court that it was conceded that much of the waste would have to be removed from the land but also confirmed that the full ambit of the orders sought by Coffs Harbour Council was opposed.

13. With these opening positions established, Coffs Harbour Council proceeded to read the affidavit of its solicitor, Mr Mark Cottom, filed on 30 November 2016, and two affidavits of its senior compliance officer, Ms Leanne Grocott, filed on 16 March 2017 and 25 May 2017 respectively. The Respondent’s agents then proceeded to engage in a relatively lengthy cross-examination of Ms Grocott concerning Coffs Harbour Council’s actions and process with respect to the waste issue on the Land.

14. Shortly after Ms Grocott withdrew, and immediately before the Court adjourned for luncheon at 1.25pm, the Court made some observations on the basis of the material before the Court and what it had seen during the view of the Land and the surrounding neighbourhood. The Court noted the stark contrast between the unkempt state of the Respondent’s Land when compared to the neat and tidy condition of neighbouring properties in the immediate locality (Transcript, page 36, line 4 to page 37, line 36). The Court explained that whereas there is some tolerance of differing approaches to individual property presentation and management – acknowledging the legal rights of the Respondent – it is the good of the neighbourhood and broader community that the Court must have regard to in exercising its discretion as to whether to make orders consequential on an established significant breach of the Local Government Act 1993. In particular, the Court referred to the risks posed by the possible presence of rats, snakes or insects on the Land, which may be attracted to the Land due to its unkempt state.

15. After putting these observations directly to the Respondent’s agents, they agreed that the state and appearance of the Respondent’s Land contrasted with neighbouring properties and that the Land needed to be cleaned up. Consequently, the Court suggested that the Respondent’s agents use the luncheon adjournment to carefully consider and discuss the relevant issues and observations of the Court with the Respondent.

16. Upon the hearing resuming from the luncheon adjournment, the Court was informed that the matter may be settled between the parties. The matter was then indeed settled by way of the Court making, by consent, the Court Orders. However, as has already been noted, the parties were in disagreement as to whether the Respondent should pay Coffs Harbour Council’s costs of the proceedings. After hearing the short submissions of both parties on costs, the Court indicated that its judgment as to the costs dispute would not be delivered until after the expiry of 42 days, being the same period provided for the clean-up of the Land. The hearing then concluded shortly after 3.00pm.

The relief sought and the relief obtained by Coffs Harbour Council

17. The relief sought by Coffs Harbour Council in its summons of 30 November 2016 was as follows:

(1) A declaration that the respondent has breached the Local Government Act 1993 (LG Act) by failing to comply with an order in terms of order No 22A in the Table to section 124 of that Act given to him by the applicant on or about 6 September 2016 (the Order) in respect of waste kept on residential premises described as Lot C DP 408189 known as 2A Gundagai Place, Coffs Harbour (the Premises).

(2) An order that the respondent by himself, his servants or agents, within 28 days of the date of these orders, remove from the Premises all accumulated waste stored external to the dwelling house and shed on the Premises (included (sic) but not limited to the front and rear yards, the areas between the buildings and property boundaries and the front verandah of the house), including any and all:

(a) garbage, being all refuse whether putrescible or non-putrescible;

(b) discarded, rejected, unwanted, surplus or abandoned substances, matters or things (whether or not intended for processing, recycling, re-use or recovery);

(c) unregistered motor vehicles (including motorcycles) and any waste contained therein;

(d) other vehicles in a poor state of repair, including mobile plant and any trailers and bicycles;

(e) car parts (including but not limited to wheels, tyres and tubes);

(f) scrap metal;

(g) stockpiles of wood;

(h) building materials;

(i) containers, drums, pots, crates, pallets, bags and packaging;

(j) BBQs and gas bottles;

(k) furniture;

(l) lawn mowers (including any associated parts);

(m) other loose items in a poor state of repair including machinery, helmets, pet enclosures, appliances, toys and other household items; and

(n) dead vegetative matter.

(3) An order that the respondent dispose of all accumulated waste referred to above at a lawful waste facility, and provide the applicant with receipts demonstrating such disposal, within 28 days of the date of these orders.

(4) In the event that the above orders are not complied with, orders under section 678 of the LG Act that:

(a) the applicant do all such things as are necessary or convenient to give effect to the terms of the Order, including the carrying out of any work required by the Order; and

(b) any expenses incurred by the applicant in giving effect to the terms of the Order together with all its associated costs may be recovered by the applicant in any court of competent jurisdiction as a debt due to the applicant by the respondent.

(5) Such further or other order(s) as the Court thinks fit to remedy or restrain the said breach.

(6) An order that the respondent pay the applicant’s costs of the proceedings.

18. The relief obtained by Coffs Harbour Council by way of the Court Orders made at the hearing on 31 May 2017 was as follows:

(1) The Court orders that the respondent must by himself, his servants or agents, within 42 days of the date of these orders, remove from the Premises (Lot C DP 408189 known as 2A Gundagai Place, Coffs Harbour) all accumulated waste stored external to the dwelling house and shed on the Premises (including but not limited to the front and rear yards, the areas between the buildings and property boundaries and the front verandah of the house), including any and all:

(a) garbage, being all refuse whether putrescible or non-putrescible;

(b) discarded, rejected, unwanted, surplus or abandoned substances, matters or things (whether or not intended for processing, recycling, re-use or recovery);

(c) unregistered motor vehicles (including motorcycles but excluding the Mitsubishi Pajero and Holden Commodore, both of which must be kept in the driveway and not be used for the storage of waste) and any waste contained therein;

(d) other vehicles in a poor state of repair, including mobile plant and any trailers and bicycles;

(e) car parts (including but not limited to wheels, tyres and tubes);

(f) scrap metal;

(g) stockpiles of wood (excluding firewood, which is to be neatly stacked at the side of the house);

(h) building materials;

(i) containers, drums, pots, crates, pallets, bags and packaging;

(j) BBQs and gas bottles;

(k) furniture;

(l) lawn mowers (including any associated parts);

(m) other loose items in a poor state of repair including machinery, helmets, pet enclosures, appliances, toys and other household items; and

(n) dead vegetative matter.

(2) The Court orders that the respondent must, by himself, his servants or agents, dispose of all accumulated waste referred to above at a lawful waste facility, and provide the applicant with receipts demonstrating such disposal, within 42 days of the date of these orders.

(3) In the event that the above orders are not complied with, the Court orders under section 678 of the Local Government Act 1993 that:

(a) the applicant do all such things as are necessary or convenient to give effect to the terms of the Orders, including the carrying out of any work required by the above Orders; and

(b) any expenses incurred by the applicant in giving effect to the terms of the above Orders together with all its associated costs may be recovered by the applicant in any court of competent jurisdiction as a debt due to the applicant by the respondent.

19. The only material differences between the orders sought by Coffs Harbour Council in its summons and the final Court Orders was that: the latter did not include the declaration sought in item (1) of the summons; the time for compliance was extended from 28 to 42 days; and dispensation was made for the retention of a Mitsubishi Pajero and Holden Commodore on the driveway of the Land and neatly stacked firewood at the side of the dwelling.

The Respondent’s claim that he should not pay the Applicant’s costs

20. The Respondent’s mother submitted that the Respondent should not be ordered to pay Coffs Harbour Council’s costs for four main reasons. First, it was submitted that the Respondent suffers from considerable hardship. In particular, the Respondent’s mother said that the Respondent is afflicted by chronic health issues caused by a motorbike accident 18 years ago. The Respondent was said to suffer from: head, neck and back injuries; the amputation of his foot; epilepsy; and an inability to “think like normal people”. With respect to this last issue, the Respondent’s mother submitted that this means that the Respondent “…can’t work out why he’s got to get rid of his belongings. He owns it (sic)”.

21. Secondly, and relatedly, the Respondent’s mother submitted that the Respondent has had considerable difficulty in complying with the s 124 Order. This was said to be exacerbated by the fact that the Respondent’s friends have been transporting the Respondent’s possessions (from the Respondent’s mother’s former property) onto the Land.

22. Thirdly, the Respondent’s agents submitted that the Respondent should not be ordered to pay Coffs Harbour Council’s costs because the Respondent does not have the capacity to pay such costs. The Respondent’s wife indicated that the Respondent receives no income and depends on welfare payments. The Respondent’s mother said that they would use “[w]hatever money we’ve got” to comply with the Court Orders.

23. Finally, the Respondent’s mother submitted that she, the Respondent and the Respondent’s wife have made genuine efforts to clean up the curtilage of the Land.

Coffs Harbour Council’s argument that the Respondent should pay its costs

24. Coffs Harbour Council submitted that, pursuant to r 42.1 of the Uniform Civil Procedure Rules 2005, the general rule that costs follow the event should apply in these proceedings. In support of this, it was asserted that the proceedings were necessarily commenced, necessarily continued and that the resolution of the proceedings (that is, the making of consent orders on the afternoon of the allocated day for hearing) was necessary to remedy a fairly serious breach of the Local Government Act 1993.

24. With respect to the assertion that the proceedings were necessarily commenced, Coffs Harbour Council submitted that it only issued the s 124 Order to remove and dispose of waste (alleged to constitute a public health risk) after a significant period of time. Following the end of the 60 day window for complying with the s 124 Order, Coffs Harbour Council issued a letter of demand on 17 November 2016 which provided the Respondent with a further period of time to provide an undertaking that he would comply with the s 124 Order. In light of the failure of the Respondent to do so, Coffs Harbour Council commenced these proceedings.

25. Additionally, Coffs Harbour Council asserted that inspections carried out subsequent to the commencement of proceedings demonstrated that there has not been any material change to the unacceptable state of the Land (albeit conceding that some improvement had been made to the front and rear yard).

26. In response to the submission that the Respondent has no ability to pay the costs of the proceedings, Coffs Harbour Council observed that this claim was not substantiated by any evidence. In any event, it was contended that the Respondent’s capacity to pay is not a relevant consideration for the Court in deciding whether the general costs rule should apply. Similarly, Coffs Harbour Council asserted that the quantum of costs that could be agreed or assessed is not a relevant consideration.

Statutory framework

28. In Class 4 proceedings, section 98 of the Civil Procedure Act 2005 provides the Court with a wide discretionary power to award costs: North Sydney Council v Wouters [2012] NSWLEC 94 at [26] and Warringah Council v Ulrich [2012] NSWLEC 234 at [98]. Section 98 is in the following terms:

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount.

…

29. However, this wide discretionary power is conditioned by rule 42.1 of the Uniform Civil Procedure Rules 2005 (‘the UCPR’), which provides the general rule that costs follow the event:

42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

The general rule

30. In ordinary Class 4 proceedings, the effect of rule 42.1 of the UCPR is that the Court should normally require that the reasonably incurred costs of the successful party be paid by the unsuccessful party: Latoudis v Casey (1990) 170 CLR 534 at 566-567; [1990] HCA 59 and Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67].

31. Whilst the meaning of “the event” under rule 42.1 is not always straightforward, “[i]t is generally accepted that the expression … refers to the practical result of a particular claim” (Ritchie’s Uniform Civil Procedure NSW at [42.1.10]; See Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232 at [13]), which ordinarily follows a hearing on its merits: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624; [1997] HCA 6.

32. The significance of the general rule is that, as was observed by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin at 624, “[s]uccess in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order” (citing Latoudis v Casey at 566-568).

33. The rationale for the general rule was explained by McHugh J in Oshlack v Richmond River Council at [67]-[68] as follows:

The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.

(Citations omitted)

34. In the present case, it is important to recognise that this Court has held that “…a person’s means to pay is not a relevant consideration” in determining whether the general rule for costs should apply: North Sydney Council v Wouters at [26]; See also Warringah Council v Ulrich at [98]-[99], Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130 at [11], Hooper v Port Stephens Council (No 3) (2010) 176 LGERA 97; [2010] NSWLEC 178 at [41] and Michales v Dimoski (No 2) [2007] NSWLEC 591 at [15].

35. In Director-General of the Department of Environment, Climate Change and Water v Venn (No 2), the factor of the respondent’s means to pay was not considered to be a sufficient reason to not make an appropriate costs order against the respondent: at [30]. In that decision, Preston CJ of LEC also relevantly observed at [31] that: “[i]f a costs order is made, the amount will need to be assessed in the usual way so that this permits Mr Venn some opportunity to ensure that the amount is reasonable and relates to the subject matter of the proceedings. It may be that the applicant chooses not to enforce payment of the whole of the costs or may agree to Mr Venn making payments by instalments, however, these are matters for the applicant.”

The approach to costs when proceedings conclude prior to judgment

36. In circumstances where proceedings have been settled without a hearing on the merits, save for the issue of costs, the Court may be deprived of “the event” - “the factor that usually determines whether or how it will make a costs order”: See Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin at 624. That is to say, where civil enforcement proceedings are concluded by the Court making substantive orders by consent – yet the orders are not the product of the final hearing and determination of the applicant’s claim by the Court – the following question arises: “[w]hat is the proper approach to the question of costs”? (Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 at [43]).

37. As Preston CJ of LEC observed in Kiama Council v Grant, there will normally be two types of cases which conclude in a manner that is “…not the product of a final hearing and determination of the applicant’s claim”:

[56] The first type of case is where one party effectively surrenders to the other without there being a hearing and determination on the merits.

…

[72] The second type of case is where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs…

38. Relevantly for the present proceedings, Preston CJ of LEC stated in Kiama Council v Grant that a typical example of a case that falls in the first category is one “…where a party consents to the Court making orders or gives an undertaking to the Court in substantially the same terms or effect as sought by the other party in the proceedings”: at [60]. As examples of cases of this nature, Preston CJ of LEC referred to Wollondilly Shire Council v Anh Nhu Le (2004) 137 LGERA 416; [2004] NSWLEC 524; Kurnell Lodge Pty Ltd v Bourne [2004] NSWLEC 329; Newcastle City Council v Winwood [2005] NSWLEC 294; Pittwater Council v Varney [2005] NSWLEC 651 and Manly Council v Kelly [2005] NSWLEC 685.

39. Following his Honour’s consideration of the relevant cases, Preston CJ of LEC articulated a guiding principle for civil enforcement cases that feature circumstances where there has been no hearing on the merits and one party has effectively surrendered to the other party – by submitting to the Court making orders substantially in the terms or to the effect claimed by the other party. This principle holds that, in those circumstances, “…the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party”: at [80].

40. In fact, Kiama Council v Grant was itself an example of the first type of case. Ultimately, Preston CJ of LEC held in that the usual order as to costs should be made for, inter alia, the following reasons:

[81] … The Council has been successful in the litigation. The proceedings have been concluded by the making of the orders of the Court. The orders made are substantially the same as the orders sought by the Council in its Class 4 application. The fact that the orders made by the Court were made by consent does not alter these conclusions.

…

[87] The chronology of events stated earlier in the judgment reveals that the Council was entirely justified in commencing and continuing the Class 4 proceedings…

41. It should be emphasised, however, that this decision focused upon cases where there had been no final hearing whatsoever, rather than circumstances where the substantive hearing was cut short by the making of orders by consent. Additionally, this decision did not involve the consideration or application of the UCPR.

Consideration

42. Whilst the Court has a broad discretion with respect to awarding costs, the starting point is the general rule that costs follow the event. Although in this case there was not a final determination of the proceedings following a full contested hearing, there was nevertheless an appropriate conclusion of the proceedings by the parties agreeing to consent orders, which became the Court Orders. That conclusion was reached after all of Coffs Harbour Council’s evidence was placed before the Court and the essence of its submissions heard. It was also in the context of the Respondent’s agents confirming that they had no evidence (to counter Coffs Harbour Council’s case) to place before the Court. During the hearing, the Court put the proposition to the Respondent’s agents that: “...it may be you don’t take issue with some of the orders. You might accept that the case that the Council has put is accurate, that there is material that needs to go. You may accept that there is waste that needs to go”. In response, the Respondent’s agent Leanne West said: “We already have accepted that …” (Transcript, page 36, lines 7 – 11).

43. The Court advised the parties that their agreement represented a responsible approach to the proceedings. Given the Respondent’s agents’ concession that the waste had to go, it was a course that the Court had encouraged before the luncheon adjournment, indicating that the Respondent’s agents should reflect on the evidence and submissions that they had heard and discuss the matter with the Respondent. The agreement to enter into consent orders was clearly an outcome of the process of reflection suggested by the Court.

44. In considering the “costs follow the event” rule, it may be so that there was no “event” in the form of a judgment. Nevertheless, the outcome was essentially that Coffs Harbour Council was entirely successful. The declaration that was originally sought was no longer required because the consequential outcome sought was secured by the Court Orders. Save for the minor allowance for two vehicles and stacked firewood to remain on the Land in an orderly fashion and the extension of time for compliance, Coffs Harbour Council achieved the consequential orders that it originally sought. Importantly, by consenting to the Court Orders, the Respondent has conceded, via his agents, that compliance with the original proposed orders, albeit with minor variations, was both reasonable and necessary. Consistent with that approach, the Respondent’s agents stated to the Court, on a number of occasions, that they accepted that the waste, specified in the Court Orders, needed to be cleared away.

45. Regretfully, compliance with the original s 124 Order would have obviated the need for the proceedings to be commenced, case managed, and largely heard by the Court. It was clear that there was non-compliance, which was conceded by the Respondent’s agents. At various times in the interlocutory stages of the proceedings, there were opportunities for the Respondent to concede in the manner that he eventually did. In particular, the Court sought and obtained explicit confirmation at the pre-trial mention on 17 May 2017 from the Respondent, with the Respondent’s wife Jasmine West (who, to reiterate, was subsequently appointed as one of his agents) being present, that he opposed the Court granting the relief sought.

46. The Court never received a clear explanation as to why the Land was not cleaned-up or why the relief sought by Coffs Harbour Council (essentially the required clean-up action) was opposed, save, via his agents at the final hearing, that it was “too difficult”, to collectively paraphrase various responses. The tenor of this explanation can be gained from passages from page 44 of the transcript: “….he doesn’t think like normal people. He feels as though it’s his belongings. He can’t work out why he’s got to get rid of his belongings. He owns it” (lines 13-15); “But sometimes I can talk to him and it’s just like, you know, you’re talking to a normal person. And the next thing, he’s, like, not normal. I don’t know how to explain it” (lines 24-26); “It doesn’t sink in. Nothing sinks in with him” (line 30); “…been waiting on his mates to come and help him – like, they’re the ones that have been helping him dump the stuff and that, because he can’t lift it himself. So, and he’s been just flat on his back in bed.” (lines 44-47).

47. It was very apparent to the Court that the situation of the Respondent appears to be sad and pitiable. As mentioned above, the Court was advised that the Respondent was involved in a motor bike accident at the age of 16, from which he received significant head injuries. He was described as having deteriorated over the subsequent 18 years, suffering from memory loss and epilepsy. Part of one foot has been amputated and he has neck and back injuries. He cannot dress himself. His wife is his full-time carer. They have four children, of whom two are disabled. They have no income, save for government pensions or benefits, which were described by Jasmine West as being entirely expended “taking care of Warren and my kids” (Transcript, page 45, line 39).

48. Whilst stating that he sympathised with the Respondent’s predicament, Mr Cottom for Coffs Harbour Council correctly stated at the final hearing that all such descriptions of the Respondent’s plight were from the bar table and were not substantiated by evidence. Whereas the Court accepts that Mr Cottom was correct regarding the uncertain evidentiary basis of the Respondent’s predicament, the emotional state of the Respondent’s agents whilst describing, with difficulty, his life could be interpreted as confirmation that what the Court heard was accurate. I need not form a final view on this aspect of the case.

49. The Court indicated to the parties that, should a costs order be made in favour of Coffs Harbour Council, the Council can, in its discretion, decide whether to pursue payment of these costs. In the context of the Respondent’s apparent impecunious state and general personal plight, the Court surmised that a costs order might lack utility. Mr Cottom pressed for an order in favour of the Council by reasoning that: “…it would be better for the order to be made and the burden falls basically onto the Council to exercise its discretion about how, if at all, it pursues enforcement of the order” (Transcript, page 46, lines 26-28). Mr Cottom submitted: “It would, I guess, put the discretion to the Council about how, if at all, it enforces the order, and how it tries to negotiate in relation to trying to reach any kind of agreed amount, including any agreement, if it could be reached, for a certain amount to be paid by instalments.” (lines 37-41).

50. Relevant to the exercise of my discretion, my conclusions with respect to the following considerations are as follows:

1. that, as conceded by the Respondent, Coffs Harbour Council has demonstrated that it acted responsibly in issuing the s 124 notice as the physical circumstances on the Land warranted this action;

2. given the failure of the Respondent to comply with the s 124 notice, Coffs Harbour Council acted responsibly in commencing these proceedings;

3. the Respondent had ample opportunity to advise the Court that he would not oppose the relief sought, but chose to adopt a course opposing the relief without proffering any explanation until his agents did so at the final hearing; and

4. although the proceedings were concluded by way of the Court Orders, made by consent, the outcome represents a completely successful result for Coffs Harbour Council. That is, Coffs Harbour Council has ultimately obtained the substantive relief that it sought in the original summons.

51. For all of these reasons, and consistently with the relevant case law outlined above, I have decided to order that the Respondent pay Coffs Harbour Council’s costs of these proceedings.

52. However, I do note that, as the costs will either be agreed or assessed, Coffs Harbour Council may agree on an appropriate approach to the payment of costs to reflect the Respondent’s circumstances. Just as the Court is aware of the Respondent’s impecunious state and his general plight, so Coffs Harbour Council is now aware of those unfortunate circumstances. Coffs Harbour Council has a greater capacity than the Court to assess the appropriate response to those circumstances, such as to consider the balance between the exercise of compassion in favour of the Respondent and the broader financial implications for the Coffs Harbour community should a compassionate approach be taken. Providing that the primary objective is achieved, with the Respondent’s Land cleared of waste in the broader community’s interest, Coffs Harbour Council has the discretion to decide that the recovery of its costs is of secondary importance. Of course, this is entirely a matter for Coffs Harbour Council.

Orders

53. The Court orders that:

1. The Respondent (Mr Warren John West) is to pay the Applicant’s (Coffs Harbour City Council) costs of the proceedings as agreed or assessed; and

2. The Applicant is to cause a copy of this judgment and these orders to be personally served on the Respondent or, if the judgment and orders cannot practicably be served on the Respondent, the Respondent’s agents (Ms Leanne West and/or Ms Jasmine West).

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Decision last updated: 28 July 2017