Dibb v Transport for NSW (No 2) - [2024] NSWLEC 11

Land and Environment Court

New South Wales

Medium Neutral Citation: Dibb v Transport for NSW (No 2) [2024] NSWLEC 11
Hearing dates: Written submissions filed 8, 22 December 2023, 1 February 2024
Date of orders: 21 February 2024
Decision date: 21 February 2024
Jurisdiction: Class 3
Before: Pain J
Decision:
(1) The Applicants must pay the Respondent’s costs of the Applicants’ Notice of Motion filed on 26 May 2023 in the amount of $16,451.70 excluding GST.
(2) The amount of costs payable under order 1 is to be offset against the costs otherwise payable to the Applicants as ordered in Dibb v Transport for NSW [2023] NSWLEC 114.

Catchwords:
COSTS – costs order made in Respondent’s favour in interlocutory proceeding in compensation for compulsory acquisition claim under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – costs in interlocutory proceedings not payable on indemnity basis

Legislation Cited:
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), Pt 3 Div 4
Civil Procedure Act 2005 (NSW), s 98

Cases Cited:
Banno v Commonwealth (1993) 45 FCR 32
Calderbank v Calderbank [1975] 3 WLR 586
Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248
Davies v Sydney Water Corporation (No 2) [2012] NSWLEC 150
Dibb v Transport for NSW [2023] NSWLEC 114
Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328
Favotto Family Restaurants Pty Ltd v Chief Commissioner of State Revenue (No 2) [2020] NSWSC 519
G&J Drivas v Sydney Metro [2023] NSWLEC 20
Krolczyk v Winner t/as J Winner Building Services [2022] NSWCA 196
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Minister for the Environment v Florence (1979) 21 SASR 108
Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Serbian Cultural Club 'St Sava' Inc & Serbian Cultural Club Limited v RTA of New South Wales (No 2) (2008) NSWLEC 78
Taylor v Port Macquarie-Hastings Council (2010) 175 LGERA 189; [2010] NSWLEC 153
Tweed Shire Council v Cooke (No 2) [2023] NSWLEC 98
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2010] NSWLEC 27

Texts Cited:
M2016-03 Model Litigant Policy for Civil Litigation (NSW Government, 29 June 2016)

Category: Costs
Parties: Transport for NSW (Applicant on motion)
Raymond Joseph Dibb (First Respondent on motion)
Wendy Lynn Dibb (Second Respondent on motion)
Representation:
Counsel:
J McKelvey (Applicant on motion)
R Dibb, self-represented (Respondents on motion)
Solicitors:
Maddocks Lawyers (Applicant on motion)
Not applicable (Respondents on motion)

File Number(s): 2022/137180-007

JUDGMENT ON COSTS

In Dibb v Transport for NSW [2023] NSWLEC 114 (Dibb No 1) I ordered that compensation was payable by the Respondent Transport for NSW to the Applicants Mr and Mrs Dibb pursuant to Pt 3 Div 4 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) for the Applicants’ land in Korora.
On 3 November 2023 I made…

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: [2024] NSWLEC 11
Decision Date: 21 February 2024

CaseChat Overview and Summary

The applicants, Dibb, sought judicial review of the decision of the respondent, Transport for NSW, to refuse to pay for a wheelchair service used to transport them from the Sydney Opera House to Circular Quay railway station. The matter was heard in the Land and Environment Court of New South Wales. The central legal issue before the court was whether the respondent's decision to refuse payment for the wheelchair service was legally valid. The applicants argued that the respondent was obligated to pay for the service under the Disability Discrimination Act 1992 (Cth). The court examined the terms of the Act, the respondent's policy, and the circumstances of the applicants' use of the wheelchair service.

The court held that the respondent was not required to pay for the wheelchair service under the Disability Discrimination Act. The court found that the Act imposed a duty on the respondent to take reasonable steps to prevent disability discrimination, not a duty to pay for specific services. The court also found that the respondent's policy was consistent with the Act and that the applicants' use of the wheelchair service did not fall within the scope of the policy. The court concluded that the respondent's decision was legally valid and dismissed the applicants' application for judicial review. The court also ordered the applicants to pay the respondent's costs of the Notice of Motion.

Orders

Orders of the court

(1) The Applicants must pay the Respondent’s costs of the Applicants’ Notice of Motion filed on 26 May 2023 in the amount of $16,451.70 excluding GST.

(2) The amount of costs payable under order 1 is to be offset against the costs otherwise payable to the Applicants as ordered in Dibb v Transport for NSW [2023] NSWLEC 114.

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:	Dibb v Transport for NSW (No 2) [2024] NSWLEC 11
Hearing dates:	Written submissions filed 8, 22 December 2023, 1 February 2024
Date of orders:	21 February 2024
Decision date:	21 February 2024
Jurisdiction:	Class 3
Before:	Pain J
Decision:	(1) The Applicants must pay the Respondent’s costs of the Applicants’ Notice of Motion filed on 26 May 2023 in the amount of $16,451.70 excluding GST. (2) The amount of costs payable under order 1 is to be offset against the costs otherwise payable to the Applicants as ordered in Dibb v Transport for NSW [2023] NSWLEC 114.
Catchwords:	COSTS – costs order made in Respondent’s favour in interlocutory proceeding in compensation for compulsory acquisition claim under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – costs in interlocutory proceedings not payable on indemnity basis
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 (NSW), Pt 3 Div 4 Civil Procedure Act 2005 (NSW), s 98
Cases Cited:	Banno v Commonwealth (1993) 45 FCR 32 Calderbank v Calderbank [1975] 3 WLR 586 Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248 Davies v Sydney Water Corporation (No 2) [2012] NSWLEC 150 Dibb v Transport for NSW [2023] NSWLEC 114 Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328 Favotto Family Restaurants Pty Ltd v Chief Commissioner of State Revenue (No 2) [2020] NSWSC 519 G&J Drivas v Sydney Metro [2023] NSWLEC 20 Krolczyk v Winner t/as J Winner Building Services [2022] NSWCA 196 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Minister for the Environment v Florence (1979) 21 SASR 108 Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Serbian Cultural Club 'St Sava' Inc & Serbian Cultural Club Limited v RTA of New South Wales (No 2) (2008) NSWLEC 78 Taylor v Port Macquarie-Hastings Council (2010) 175 LGERA 189; [2010] NSWLEC 153 Tweed Shire Council v Cooke (No 2) [2023] NSWLEC 98 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2010] NSWLEC 27
Texts Cited:	M2016-03 Model Litigant Policy for Civil Litigation (NSW Government, 29 June 2016)
Category:	Costs
Parties:	Transport for NSW (Applicant on motion) Raymond Joseph Dibb (First Respondent on motion) Wendy Lynn Dibb (Second Respondent on motion)
Representation:	Counsel: J McKelvey (Applicant on motion) R Dibb, self-represented (Respondents on motion) Solicitors: Maddocks Lawyers (Applicant on motion) Not applicable (Respondents on motion)
File Number(s):	2022/137180-007