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Croghan v Blacktown City Council

Croghan v Blacktown City Council

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Case Copied 15 October 2019 32 min read

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Croghan v Blacktown City Council [2019] NSWCA 248
Hearing dates: 3 September 2019
Decision date: 15 October 2019
Before: Meagher JA at [1]
McCallum JA at [47]
Simpson AJA at [48]
Decision:
1. Grant leave to the applicant, Alan Croghan, to appeal from orders (2), (3) and (4) made by Molesworth AJ on 7 February 2019 on ground 1 in the draft notice of appeal.
2. Direct that within 7 days the applicant file a notice of appeal limited to ground 1 of the draft notice of appeal.
3. Appeal allowed.
4. Set aside orders (2), (3) and (4) made by the Land and Environment Court on 7 February 2019.
5. The respondent pay the applicant’s costs of the proceedings in the Land and Environment Court, assessed on the ordinary basis.
6. The respondent pay the applicant’s costs of the appeal and application for leave to appeal.

Catchwords:
COSTS – party/party – exceptions to general rule that costs follow the event – Land and Environment Court – Class 3 compensation proceedings – where UCPR r 42.1 does not apply and offer of compromise rejected and judgment obtained for less than amount of offer – application of UCPR r 42.15(2) – principles relevant to exercise of discretion to “order otherwise” – whether primary judge erred in applying those principles
ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure – costs –Class 3 compensation proceedings – where presumption that costs follow the event does not apply – whether primary judge erred in applying UCPR r 42.15
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 3, 10, 37, 41, 42, 43, 47, 55, 66
Land and Environment Court Act 1979 (NSW), ss 34, 57
Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 20.25-20.32, 42.13-42.18, Sch 1
Cases Cited: Aukuso v Tahan (No 2) [2018] NSWCA 302
Banno v Commonwealth (1993) 45 FCR 32
Brock v Roads and Maritime Services [2012] NSWCA 404; (2012) 191 LGERA 267
Cooee Communications Pty Limited v Primus Telecommunications Pty Limited (No 2) [2008] NSWCA 85
Croghan v Blacktown City Council [2019] NSWLEC 2
Dillon v Gosford City Council [2011] NSWCA 328; (2011) 184 LGERA 179
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Fairall v Hobbs (No 2) [2017] NSWCA 133
Hazeldene’s Chicken Farm v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298
Leach v Nominal Defendant (QBE Insurance (Australia) Limited) (No 2) [2014] NSWCA 391
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Minister for Environment v Florence (1979) 21 SASR 108
Miwa Pty Limited v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Morgan v Johnson (1998) 44 NSWLR 578
New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100
Perisher Blue v Nair-Smith (No 2) [2015] NSWCA 268
Purfleet Farms Limited v Secretary of State…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWCA 248
Decision Date: 15 October 2019

CaseChat Overview and Summary

The applicant, Alan Croghan, sought leave to appeal against orders made by Molesworth AJ in the Land and Environment Court concerning costs in a Class 3 compensation proceeding. The dispute arose after Mr Croghan rejected an offer of compromise made by Blacktown City Council and subsequently obtained a judgment for an amount less than that offer. The primary judge had made orders regarding costs, which Mr Croghan contended were erroneous.

The central legal issue before the Court of Appeal was whether the primary judge had erred in applying the principles governing costs in Class 3 compensation proceedings in the Land and Environment Court, particularly in relation to the application of rule 42.15(2) of the Uniform Civil Procedure Rules 2005 (UCPR). This rule deals with the court's discretion to "order otherwise" regarding costs when an offer of compromise is rejected and a lesser judgment is obtained. The court was required to determine if the presumption that costs follow the event applied, and if not, how the discretion under UCPR r 42.15(2) should be exercised.

The Court of Appeal found that the primary judge had erred in applying the relevant principles. It held that the presumption that costs follow the event does not apply in Class 3 compensation proceedings in the Land and Environment Court. Furthermore, the court determined that the primary judge had misapplied the principles relevant to the exercise of discretion under UCPR r 42.15(2). Consequently, the Court of Appeal allowed the appeal, set aside the primary judge's cost orders, and ordered that Blacktown City Council pay Mr Croghan's costs of the proceedings in the Land and Environment Court, assessed on the ordinary basis, as well as the costs of the appeal and the application for leave to appeal.

Orders

Orders of the court

1. Grant leave to the applicant, Alan Croghan, to appeal from orders (2), (3) and (4) made by Molesworth AJ on 7 February 2019 on ground 1 in the draft notice of appeal.

2. Direct that within 7 days the applicant file a notice of appeal limited to ground 1 of the draft notice of appeal.

3. Appeal allowed.

4. Set aside orders (2), (3) and (4) made by the Land and Environment Court on 7 February 2019.

5. The respondent pay the applicant’s costs of the proceedings in the Land and Environment Court, assessed on the ordinary basis.

6. The respondent pay the applicant’s costs of the appeal and application for leave to appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Croghan v Blacktown City Council [2019] NSWCA 248
Hearing dates:	3 September 2019
Decision date:	15 October 2019
Before:	Meagher JA at [1] McCallum JA at [47] Simpson AJA at [48]
Decision:	1. Grant leave to the applicant, Alan Croghan, to appeal from orders (2), (3) and (4) made by Molesworth AJ on 7 February 2019 on ground 1 in the draft notice of appeal. 2. Direct that within 7 days the applicant file a notice of appeal limited to ground 1 of the draft notice of appeal. 3. Appeal allowed. 4. Set aside orders (2), (3) and (4) made by the Land and Environment Court on 7 February 2019. 5. The respondent pay the applicant’s costs of the proceedings in the Land and Environment Court, assessed on the ordinary basis. 6. The respondent pay the applicant’s costs of the appeal and application for leave to appeal.
Catchwords:	COSTS – party/party – exceptions to general rule that costs follow the event – Land and Environment Court – Class 3 compensation proceedings – where UCPR r 42.1 does not apply and offer of compromise rejected and judgment obtained for less than amount of offer – application of UCPR r 42.15(2) – principles relevant to exercise of discretion to “order otherwise” – whether primary judge erred in applying those principles ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure – costs –Class 3 compensation proceedings – where presumption that costs follow the event does not apply – whether primary judge erred in applying UCPR r 42.15
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 3, 10, 37, 41, 42, 43, 47, 55, 66 Land and Environment Court Act 1979 (NSW), ss 34, 57 Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 20.25-20.32, 42.13-42.18, Sch 1
Cases Cited:	Aukuso v Tahan (No 2) [2018] NSWCA 302 Banno v Commonwealth (1993) 45 FCR 32 Brock v Roads and Maritime Services [2012] NSWCA 404; (2012) 191 LGERA 267 Cooee Communications Pty Limited v Primus Telecommunications Pty Limited (No 2) [2008] NSWCA 85 Croghan v Blacktown City Council [2019] NSWLEC 2 Dillon v Gosford City Council [2011] NSWCA 328; (2011) 184 LGERA 179 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Fairall v Hobbs (No 2) [2017] NSWCA 133 Hazeldene’s Chicken Farm v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 Leach v Nominal Defendant (QBE Insurance (Australia) Limited) (No 2) [2014] NSWCA 391 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 Minister for Environment v Florence (1979) 21 SASR 108 Miwa Pty Limited v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Morgan v Johnson (1998) 44 NSWLR 578 New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 Perisher Blue v Nair-Smith (No 2) [2015] NSWCA 268 Purfleet Farms Limited v Secretary of State…