Fokas v Kogarah RSL Club Ltd (No 2)
[2012] NSWLEC 185
•09 August 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Fokas v Kogarah RSL Club Ltd (No 2) [2012] NSWLEC 185 Hearing dates: 8-9 August 2012 Decision date: 09 August 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) The applicant, Maria Fokas, is prohibited from instituting proceedings in the Land and Environment Court against the third respondent, Kogarah City Council, without leave of the Land and Environment Court under s 14 of the Vexatious Proceedings Act 2008; (2) The applicant, Maria Fokas, is to pay the costs of the former third respondent, Patrick Nash; (3) The applicant, Maria Fokas, is to pay the costs of the third respondent relating to prayers 1, 2 and 5 of its notice of motion filed on 26 April 2012; (4) The notice of motion filed on 26 June 2012 by the first respondent is dismissed with no order as to costs; (5) Order 6 made on 13 June 2012 is varied by adding at the end the words "save that the applicant, Maria Fokas, is to pay the third respondent's costs of the hearing on 6 June 2012".
Catchwords: VEXATIOUS PROCEEDINGS ORDER - whether should be made to prohibit applicant from instituting proceedings in the Court against a certain council without leave of the Court.
COSTS - whether applicant should pay council's costs in Class 4 judicial review proceedings - whether other more limited costs orders should be made against applicant.Legislation Cited: Environmental Planning and Assessment Act 1979 ss 96, 123
Vexatious Proceedings Act 2008 ss 3, 6, 8, 14
Federal Court Rules O 21 r 1(1)
Federal Court Rules 2011 r 6.02
Uniform Civil Procedure Rules 2005 r 42.1Cases Cited: Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192
Attorney General v Rouvinetis [2012] NSWSC 328
Brown v Randwick City Council (No 2) [2012] NSWLEC 28
Fleet v Blacktown City Council [2010] NSWLEC 39
Fleet v Blacktown City Council [2010] NSWLEC 46
Fokas and Anor; Secretary, Department of Education, Employment and Workplace Relations and Anor [2008] AATA 124
Fokas and Department of Family and Community Services [2001] AATA 1012
Fokas v Kogarah City Council [2008] NSWLEC 98
Fokas v Kogarah Council [2005] NSWLEC 626
Fokas v Kogarah Council [2007] NSWLEC 735
Fokas v Kogarah Council [2008] NSWCA 145
Fokas v Kogarah Council [2008] NSWLEC 74
Fokas v Kogarah RSL Club Ltd [2002] NSWSC 1096
Fokas v Kogarah RSL Club Ltd [2012] NSWLEC 136
Fokas v Secretary, Department of Family & Community Services [2002] FCAFC 388
Fokas v Secretary Department of Family and Community Services [2003] HCATrans 468
Fokas v Stack [2010] NSWSC 571
Fokas v The Department of Family & Community Services [2002] FCA 541
Kogarah Municipal Council v Maria Fokas [1999] NSWLEC 188
Maria Fokas v Kogarah Municipal Council [1998] NSWLEC 133
Maria Fokas v Kogarah Municipal Council [1998] (Land and Environment Court, Assessor Brown, 30 March 1998, unreported)
Maria Fokas v Kogarah RSL Club Ltd [2002] (Liquor Administration Board, 18 July 2002, unreported)
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Parramatta Business Freedom Association Inc v Parramatta City Council (No 2) [2012] NSWLEC 176
Wollondilly Shire Council v 820 Cawdor Road Pty Ltd (No 2) [2012] NSWLEC 183Category: Interlocutory applications Parties: Maria Fokas (Applicant)
Kogarah RSL Club Ltd (First Respondent)
Uniting Church in Australia Property Trust (NSW) (Second Respondent)
Kogarah City Council (Third Respondent)Representation: COUNSEL:
N/A (Applicant)
Ms S Hill, solicitor (First Respondent)
N/A (Second Respondent)
Mr A M Pickles (Third Respondent)
SOLICITORS:
N/A (Applicant)
Susan Hill & Associates (First Respondent)
N/A (Second Respondent)
Pikes & Verekers Lawyers (Third Respondent)
File Number(s): 40296/12
EX TEMPORE Judgment
This is a motion by the third respondent, Kogarah City Council, for an order under s 8(8) of the Vexatious Proceedings Act 2008 that the applicant, Maria Fokas, is prohibited from instituting proceedings in the Land and Environment Court against the Council. Also before me are applications for costs by the Council and the former third respondent, Patrick Nash, for whom the Council was substituted. I have earlier given judgment in the substantive proceedings which were for judicial review in Class 4 of the Court's jurisdiction: Fokas v Kogarah RSL Club Ltd [2012] NSWLEC 136.
VEXATIOUS PROCEEDINGS ORDER
The motion for a vexatious proceedings order is motivated by the fact that the Council has been named as a respondent in seven proceedings brought by Mrs Fokas, including these proceedings, and she has failed to comply with costs orders made against her in favour of the Council in earlier proceedings.
The statutory scheme
The Vexatious Proceedings Act relevantly provides:
3 Definitions
(1) In this Act:
...
authorised court means any of the following courts:
(a) the Supreme Court,
(b) the Land and Environment Court,
(c) the Industrial Court.
...
6 Meaning of "vexatious proceedings"
In this Act, vexatious proceedings includes:
(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
8 Making of vexatious proceedings order
(1) When orders may be made
An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that:
(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or
...
(2) For the purposes of subsection (1), an authorised court may have regard to:
(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and
(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section).
(3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(4) Orders may be made on court's own motion or on application
An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons:
...
(d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings,
...
(8) Orders that may be made by Land and Environment Court
The Land and Environment Court may make any one or more of the following vexatious proceedings orders in relation to a person:
(a) an order staying all or part of any proceedings in the Court already instituted by the person,
(b) an order prohibiting the person from instituting proceedings in the Court,
(c) any other order that the Court considers appropriate in relation to proceedings by the person in the Court.
...
14 Application for leave to institute proceedings
(1) This section applies to a person (the applicant) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or
...
(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.
...
Legal principles
Principles relating to s 8(1) and (2) of the Vexatious Proceedings Act were helpfully summarised in Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 at [7] by Davies J:
(a) the test of "frequently" is a less demanding test than was required under s 84 Supreme Court Act 1970;
(b) the term "frequently" is a relative term and must be looked at in the context of the litigation being considered;
(c) the number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person;
(d) regard may be had to applications made by the person in proceedings commenced against that person;
(e) regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;
(f) regard may be had to proceedings in any Australian court or tribunal;
(g) regard may be had to the findings and result in the proceedings under consideration.
Principles relating to vexatious litigants were eloquently expressed by Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [2] - [12] (approved by Davies J above at [8]). Although the test Perram J had to consider was the test under O 21 r 1(1) of the former Federal Court Rules (now superseded by r 6.02 of the Federal Court Rules 2011), which posed a more demanding test than that under the Vexatious Proceedings Act, much of what his Honour said is relevant to the determination of cases under the latter Act. Order 21 r 1(1) of the former Federal Court Rules provided: "If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order: (a) that any proceeding instituted by the person may not be continued without leave of the Court; and (b) that the person may not institute a proceeding without leave of the Court". Perram J said at [2] - [12]:
[2] A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen's ordinary right. It is, therefore, not lightly to be made.
[3] Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
[4] Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
[5] Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant's institution of such proceedings may fairly be said to be both habitual and persistent.
[6] Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding's legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
[7] Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
[8] Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant's conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
[9] Eighthly, each of these notions - the want of reasonable grounds, habitual institution and persistent institution - are to be gauged objectively. But this does not mean that a litigant's own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
[10] Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto - so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
...
[12] Finally, once it is concluded that the Court's power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise.
The passages quoted above from the two Gargan cases were approved in Attorney General v Rouvinetis [2012] NSWSC 328 at [16] per Adams J. As far as I am aware, there has been only one case in which this Court has made a vexatious proceedings order: Fleet v Blacktown City Council [2010] NSWLEC 39 per Pain J. An application to set aside that order was refused in Fleet v Blacktown City Council [2010] NSWLEC 46 per Craig J.
Consideration
A vexatious proceedings order in relation to a person cannot be made without hearing the person or giving the person an opportunity of being heard: s 8(3) Vexatious Proceedings Act. Mrs Fokas did not appear on the hearing of this motion by the Council for a vexatious proceedings order in relation to her, therefore I have not heard her. One of the orders I made in my principal judgment delivered on 13 June 2012 was that the Council's notice of motion filed on 26 April 2012 would be listed before me on 20 June 2012 to determine if prayer 5 for a vexatious proceedings order was still pressed and, if so, fix a hearing date. Mrs Fokas later swore an affidavit indicating that she had read the orders I made in my principal judgment. On 20 June 2012 she did not appear and I made orders relating to hearing of the motion for the vexatious proceedings order and for costs, including an order that the hearing of the motion for the vexatious proceedings order be fixed for 8 August 2012 (yesterday) - when I heard it. The evidence satisfies me that copies of the orders made on 20 June 2012 were promptly served on Mrs Fokas by sending her a copy by express post and by leaving a copy in her mailbox.
Before making a vexatious proceedings order against Mrs Fokas, the Court must be satisfied, first, that she has "instituted or conducted" vexatious proceedings as defined in s 6 and, secondly, that those proceedings have been instituted or conducted frequently: s 8(1)(a) Vexatious Proceedings Act.
The Council submits that Mrs Fokas has frequently instituted or conducted proceedings in Australia that are "vexatious proceedings" as defined in s 6(c), that is, "proceedings instituted or pursued without reasonable ground" (I note in passing that the reason for the shift of language from "pursued" in s 6(c) to "conducted" in s 8(1)(a) is not self-evident). In the Council's submission, those vexatious proceedings comprise the proceedings in Fokas v Stack [2010] NSWSC 571, the proceedings commenced by Mrs Fokas listed in the schedule to the judgment in that case, and these proceedings.
In Fokas v Stack, the Supreme Court per Fullerton J made vexatious proceedings orders under s 8(7) of the Vexatious Proceedings Act against Mrs Fokas. The orders prohibited her from instituting fresh proceedings in any court against any of the defendants in those proceedings and from making any application in any legal proceedings involving any of the defendants without first obtaining leave under s 14 of the Act. The defendants in those proceedings were dental practitioners. At various times over many years Mrs Fokas had been a patient of each. The vexatious proceedings orders were based on the proceedings in Fokas v Stack itself as well as 14 earlier proceedings listed in the schedule to that judgment which Mrs Fokas had commenced in a number of courts, including the Land and Environment Court, and tribunals against a number of entities including the Council. In all those proceedings the decisions were adverse to Mrs Fokas.
Mrs Fokas had brought three earlier proceedings in the District Court against the dental practitioners, which were all summarily dismissed. Her proceedings against them in the Supreme Court sought to set aside the District Court orders and were also summarily dismissed. Fullerton J held at [11] - [12] and [14]:
11 In each of the fourteen actions the decision was adverse to the plaintiff whether at first instance or on appeal. After close consideration of each of the decisions, the relevant portions of which have been conveniently summarised and analysed in Mr Sheldon's submissions, I am satisfied that the actions commenced by the plaintiff variously against Municipal Councils, State or Federal government departments or other instrumentalities may, at least on some occasions have been instituted on disclosed grounds, they were almost exclusively pursued unreasonably, in the sense of being as persevered or persisted with on appeal in the face of there being no proper basis to challenge the decision.
12 More significantly for the purposes of the present application were three sets of proceedings commenced against various of the defendants in the District Court between October 2007 and May 2009. By October 2009 each of those proceedings were dismissed either as a result of a persistent or continuing failure on the part of the plaintiff to comply with the UCPR under the Court's direction or because it was ultimately determined to be "frivolous, vexatious and without a reasonable basis". In respect of instituting and pursuing each proceeding the plaintiff's conduct is demonstrative of a pattern of conduct where she persistently filed motions that were either incompetent or designed to challenge or seek leave to have set aside interlocutory decisions that issued for the orderly preparation and conduct of the proceedings. This conduct on the plaintiff's part is caught by the extended definition of both "proceedings" and "institute" in relation to proceedings in Part 1 of the Act.
...
14 On the evidence tendered before me I am satisfied that the plaintiff has frequently instituted vexatious proceedings (in particular against each of the defendants in the District Court and more recently in this Court) such as to justify the orders sought by them. Although I have also come to the considered view that her conduct as a litigant in other proceedings set out in the attached schedule reflects a persistent, even a deliberate, failure to appreciate that the unwarranted usurpation of the Court's time and the resources of the court system is productive of waste and undermines the efficient dispatch of the business of courts and tribunals, the orders I make are in the limited terms that each of the defendants seek and not of wider application.
A schedule of those 14 earlier proceedings was annexed to Fullerton J's judgment. Annexed to my judgment is a schedule which substantially replicates that schedule, subject to some editing. A fifteenth proceeding was and is included, but that was a civil enforcement proceeding brought by the Council against Mrs Fokas.
I substantially concur with Fullerton J in that, in my view, the 14 proceedings brought by Mrs Fokas listed in the schedule were almost exclusively pursued unreasonably, and (to that extent) they and the proceedings in Fokas v Stack were vexatious. Six of those proceedings were against the Council in this Court. The present proceedings are the seventh proceedings by Mrs Fokas against the Council in this Court. However, in my view, the proceedings referred to in paragraph (a) of the schedule do not fall into the vexatious category: they were a Class 1 merits appeal to this Court by Mrs Fokas against an order issued by the Council for the removal of poultry. And the proceedings referred to in paragraph (c) of the schedule are irrelevant for present purposes because they were not proceedings brought by Mrs Fokas but were Class 4 civil enforcement proceedings brought against her. The definition of "vexatious proceedings" in s 6(c) of the Vexatious Proceedings Act is concerned with proceedings "instituted" or "pursued" without reasonable ground, not with proceedings in which the person targeted for a vexatious proceedings order is a respondent.
In my opinion, the present proceedings were also vexatious proceedings in that they were instituted and pursued without reasonable ground. They challenged the validity of a condition of a development consent granted by the Council. The condition provided for the creation of an easement for access and parking over land adjacent to Mrs Fokas' home. She was able to bring the proceedings under the open standing provisions of s 123 of the Environmental Planning and Assessment Act 1979. As indicated above at [1], I have earlier given final judgment in these proceedings, except for the Council's motion which I am now hearing. The Council had moved for summary dismissal of the proceedings but when the motion was called on for hearing the parties agreed to the proceedings being heard on a final basis. I made a declaration of partial invalidity of the condition, a declaration as to the proper construction of the surviving part of the condition, and ordered the respondents to take all reasonable steps as soon as practicable to obtain a modification of the condition so that it conformed with the declared construction. The orders have the effect of rectifying errors and drafting slips in the condition, are beneficial for the respondents and represent a sound planning outcome. However, they fell far short of what Mrs Fokas was seeking.
The grounds upon which Mrs Fokas challenged the validity of the condition of the development consent did not emerge until her oral submissions at the hearing. The great majority of the hearing time was taken up with grounds which were without merit. The orders made were because of two serious errors in the drafting of the condition. There were also three other drafting slips which had to be taken into account when construing the condition, but they did not have invalidity consequences of themselves. The errors and drafting slips became common ground at the hearing. Only the first and most obvious of the drafting errors was identified by Mrs Fokas (re Lot 48). The rest were identified by the Court and the Council in the course of submissions. In my view, apart from the identification of that error, the proceedings were instituted and pursued without reasonable ground.
In the result, I am satisfied that Mrs Fokas has frequently instituted or conducted vexatious proceedings.
The extent of the costs and inconvenience of Mrs Fokas foraging in the courts has been substantial for the Council and, no doubt, for other respondents to her proceedings. Over the years she has failed to comply with costs orders made against her in favour of the Council. She has displayed no apparent insight into her previous litigious history. Nor has she advanced any defence to the application for a vexatious proceedings order. A vexatious proceedings order would provide a measure of future protection for the Council, which I think is warranted, in that there would be a threshold screening process, ie leave of the Court under s 14 of the Vexatious Proceedings Act, before she could again bring proceedings against the Council in this Court. Of course, there may be cases in which leave might readily be granted: for example, a Class 1 appeal against refusal of her development application is a likely candidate for leave.
In the circumstances, I consider that a vexatious proceedings order should be made prohibiting Mrs Fokas from instituting further proceedings against the Council in this Court without first obtaining leave of the Court under s 14 of the Vexatious Proceedings Act.
COSTS
In my first judgment I made an order that there be no order as to the costs of the proceedings. However, as I had not given the parties an opportunity to be heard on costs, on 20 June 2012 I gave them leave to apply for another costs order and fixed today, 9 August 2012, for the hearing of any costs applications. Mrs Fokas did not appear today.
The first respondent Kogarah RSL Club Ltd, the former third respondent Patrick Nash, and the substituted third respondent Kogarah City Council all applied for an order against Mrs Fokas for costs. However, the first respondent did not press its costs notice of motion which, accordingly, I propose to dismiss with no order as to costs.
At the hearing of the substantive proceedings and by consent, the Council was substituted as third respondent for Mr Nash, who was a town planner employed by the Council. I can see no reasonable basis on which Mr Nash could have been joined to the proceedings. Therefore, in my view, Mrs Fokas should pay his costs of the proceedings.
In my view, Mrs Fokas should also pay the costs of prayers 1, 2 and 5 of the Council's notice of motion filed on 26 April 2012. Prayers 1 and 2 related to the removal of Mr Nash and the substitution of the Council as third respondent. Prayer 5 sought a vexatious proceedings order against Mrs Fokas, which I have determined above.
That leaves for consideration the Council's application that Mrs Fokas should pay the Council's costs of the proceedings generally. At the hearing today the Council modified that application by submitting that there should be an apportionment of costs such that she should pay 75 per cent of the Council's costs.
The usual order in Class 4 proceedings is that costs follow the event: r 42.1 Uniform Civil Procedure Rules 2005. A successful litigant is generally entitled to an award of costs. However, costs may be apportioned where a successful applicant has failed on clearly dominant or separable issues, particularly if it was unreasonable to pursue those issues because they lacked real merit. The principles relating to apportionment of costs have been discussed by this Court on a number of occasions. It is sufficient for present purposes to refer to the discussions in the recent decisions in Brown v Randwick City Council (No 2) [2012] NSWLEC 28, Parramatta Business Freedom Association Inc v Parramatta City Council (No 2) [2012] NSWLEC 176 and Wollondilly Shire Council v 820 Cawdor Road Pty Ltd (No 2) [2012] NSWLEC 183.
In summary, the Council submits that an apportionment of costs order should be made because:
(a) the grounds on which Mrs Fokas failed took up the bulk of the hearing time and, as I held in my principal judgment, were without merit;
(b) the consequential orders made, as I held in my principal judgment, fell a long way short of her target;
(c) of the five errors or drafting slips exposed at the hearing, only one was identified by Mrs Fokas, being the first and most obvious one. The rest were identified by the Court and the Council in the course of submissions. Errors in conditions of consent do not necessarily give rise to invalidity;
(d) the substantive orders made were not truly the product of the determination of Mrs Fokas' claim;
(e) Mrs Fokas did not base her claim on the five errors or slips; and
(f) the defects were not remediable by the Council except upon receipt of an application under s 96 of the Environmental Planning and Assessment Act by the first or second respondents. These proceedings were unnecessary because in fact the second respondent made a modification application.
The last point requires some elaboration. On 31 May 2012, the very day before the commencement of the substantive hearing before me, the second respondent filed an application to modify the subject condition by substituting a condition for a provision in a lease between the first and second respondents whereby upon termination of the lease the burden and benefit of the condition would be automatically extinguished. It was proposed that the lease be registered on the title of the first respondent's land and a corresponding caveat be placed on the title of the second respondent's land. There is also in evidence a letter dated 31 July 2012 written on behalf of the second respondent to the Council referring to a meeting between them on 9 July 2012 which proposed a draft condition to replace the subject condition.
I do not accept that the result which has come about in these proceedings would have occurred in any event if that is what is meant by the Council's submission that these proceedings were unnecessary. It is not known whether the modification application will be granted by the Council. In any case, it is intended to effect a change to the condition whereas the orders deal only with the validity and construction of the current condition and with a modification only to the extent required to reflect those matters. The orders beneficially clear the decks in that they have exposed the errors, rid the condition of the two serious errors, construed the condition so as to clarify the drafting slips, and set in place a regime for modification to reflect that result.
There are other competing considerations on costs. On the one hand, the orders were made largely in spite of, rather than because of, Mrs Fokas in the sense that she failed in her aim to invalidate the subject condition, pressed grounds which had no reasonable prospects of success, only partly identified a ground which resulted in orders, and those orders fell well short of the relief she sought and her objective in instituting the proceedings. On the other hand, the Council was responsible for those errors and drafting slips, in effect they were rectified by the orders made, and the orders benefited the respondents and represented a good planning outcome, particularly given that a development consent is a document in rem. In these highly unusual circumstances, on balance I consider that the general costs order previously made, that is, that there be no order as to the costs of the proceedings should be modified to a limited extent by grafting onto it a qualification that Mrs Fokas should pay the Council's costs of the hearing on 6 June 2012. That was the second day of the substantive hearing. I consider that that is reasonable because the second day's hearing would have been entirely avoided except for Mrs Fokas pursuing unmeritorious claims. That does not affect the specific costs orders that I have made in favour of Mr Nash and in favour of the Council in respect of certain prayers in its notice of motion.
ORDERS
The orders of the Court are as follows:
(1) The applicant, Maria Fokas, is prohibited from instituting proceedings in the Land and Environment Court against the third respondent, Kogarah City Council, without leave of the Land and Environment Court under s 14 of the Vexatious Proceedings Act 2008.
(2) The applicant, Maria Fokas, is to pay the costs of the former third respondent, Patrick Nash.
(3) The applicant, Maria Fokas, is to pay the costs of the third respondent relating to prayers 1, 2 and 5 of its notice of motion filed on 26 April 2012.
(4) The notice of motion filed on 26 June 2012 by the first respondent is dismissed with no order as to costs.
(5) Order 6 made on 13 June 2012 is varied by adding at the end the words "save that the applicant, Maria Fokas, is to pay the third respondent's costs of the hearing on 6 June 2012".
SCHEDULE(6) The exhibits may be returned.
Decision last updated: 14 August 2012
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