Forsyth v Wilesmith (No 2)

[2008] NSWLEC 260

Land and Environment Court

of New South Wales

CITATION:

Forsyth and Anor v Wilesmith and Ors (No 2) [2008] NSWLEC 260

PARTIES:

APPLICANTS
John Alfred Forsyth
Roslyn Kim Fitness

FIRST RESPONDENTS
Paul Wilesmith
Deborah Sharon Wilesmith

SECOND RESPONDENT
Wyong Shire Council

FILE NUMBER(S):

40204 of 2008

CORAM:

Pain J

KEY ISSUES:

Costs :- exercise of discretion to award costs where multiple respondents in judicial review proceedings

LEGISLATION CITED:

Uniform Civil Procedure Rules 2005 Pt 42 r 42.1

CASES CITED:

Cutcliffe and Anor v Lithgow City Council and Ors (2006) 147 LGERA 330
Forsyth and Anor v Wilesmith and Ors [2008] NSWLEC 259
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 268
Latoudis v Casey (1990) 170 CLR 534
Oshlack v Richmond River Council (1998) 193 CLR 72

DATES OF HEARING:

10 September 2008

EX TEMPORE JUDGMENT DATE:

10 September 2008

LEGAL REPRESENTATIVES:

APPLICANTS
Mr M Fraser
SOLICITOR
P J Donnellan & Co

FIRST RESPONDENTS
Mr P Larkin
SOLICITOR
Conditsis & Associates Solicitors

SECOND RESPONDENT
Mr J Ayling SC
SOLICITOR
HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

10 September 2008

40204 of 2008 Forsyth and Anor v Wilesmith and Ors (No 2)

EX TEMPORE JUDGMENT

1 Her Honour: In Forsyth and Anor v Wilesmith and Ors [2008] NSWLEC 259 I dismissed the Applicants’ Class 4 proceedings. The issue of costs must now be determined. The usual order in Class 4 proceedings is that costs follow the event, and that is the provision in Pt 42 r 42.1 of the Uniform Civil Procedure Rules 2005 (the UCPR). Both Respondents seek their costs of the proceedings. The Applicants accept that the First Respondents should have their costs paid and I will so order. The issue that arises is whether the Second Respondent, the Council, should also have its costs paid.

2 The Applicants oppose such a costs order being made in the primary proceedings. The Council largely adopted the submissions of the First Respondents and made very short submissions as a result. While a Council officer swore an affidavit in the proceedings essentially annexing the Council file, this could have been provided in another manner such as informal discovery. There was no additional material provided by the Council in the proceedings. If costs are awarded the Applicants will be paying two Respondents for the same work.

3 There is a general obligation on the Council to file a submitting appearance relying on the observations of Biscoe J in Cutcliffe and Anor v Lithgow City Council and Ors (2006) 147 LGERA 330 at [27] - [29] where he refers to the obiter comments of Gaudron and Gummow in Oshlack v Richmond River Council (1998) 193 CLR 72 at 77-79. Biscoe J concluded at [29] that it is usually inappropriate for councils to actively defend their decisions where another active respondent is doing so unless there was a possibility of conflict between the respondents. Similar comments by Cowdroy J in Kindimindi Investments…