Gee v Council of the City of Gosford

[2003] NSWCA 157

CITATION:	GEE v COUNCIL OF THE CITY OF GOSFORD & ANOR [2003] NSWCA 157
HEARING DATE(S):	16 June 2003
JUDGMENT DATE:	16 June 2003
JUDGMENT OF:	Sheller JA
DECISION:	I order an amendment to be made by the Council of the City of Gosford within 48 hours to the form of consent order by amending the title to read "In the Supreme Court of New South Wales, Court of Appeal, Sydney Registry"; I order that the first respondent, Council of the City of Gosford, have an indemnity certificate pursuant to s6 of the Suitors Fund Act 1951 in respect of the appeal by Elizabeth Gee against the orders made in the Land and Environment Court.
CATCHWORDS:	Appeal - Costs - Suitor's fund - Appeal resolved by consent order
LEGISLATION CITED:	Suitors Fund Act 1951
CASES CITED:	Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 R v Hookham (No 2) (1993) 32 NSWLR 345
PARTIES :	Elizabeth Gee - Appellant Council of the City of Gosford - First Respondent Richard Whitington - Second Respondent
FILE NUMBER(S):	CA 40780/02
COUNSEL:	M C Fraser - First Respondent
SOLICITORS:	Abbot Tout - Appellant P J Donnellan & Co - First Respondent Michael Bowe - Second Respondent

LOWER COURTJURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	40175/01
LOWER COURT JUDICIAL OFFICER :	Pain J

CA 40780/02

SHELLER JA

Monday, 16 June 2003

GEE v COUNCIL OF THE CITY OF GOSFORD & ANOR

Judgment

(Application)

1 SHELLER JA: This is an application by the Council of the City of Gosford for the grant to it of an indemnity certificate pursuant to s6 of the Suitors Fund Act 1951 in respect of an appeal by Elizabeth Gee, being appeal number CA 40780/02, which was resolved by a consent order made and entered on 20 March 2003 setting aside the orders made in the Land and Environment Court on 19 August 2002 by Justice Pain.

2 The consent orders went on to order that the appeal be upheld and made a declaration that Development Consent 11672/01 dated 27 July 2001 was invalid and ordered the respondent to pay the appellant’s costs of the appeal and the costs in the court below. The other respondent was Richard Whitington, who was, I am told, the beneficiary of the development consent.

3 When the matter was called on this morning, though they had been given notice of this application by letters to the respective solicitors dated 10 June 2003, together with copies of the notice of motion and the supporting affidavit of Patrick Joseph Donnellan, neither the appellant, Elizabeth Gee, nor Mr Whitington appeared.

4 In a letter of 28 April 2003 the solicitors for the appellant, Abbott Tout, wrote to P J Donnellan & Co indicating they were instructed not to consent to this application.

5 Counsel for the applicant, Council of the City of Gosford, read in support of the application the affidavit of Patrick Joseph Donnellan, sworn 26 May 2003, which sets out the general background of the matter, in particular in the Land and Environment Court where there was an issue as to whether the development consent had been given or signed by a person with due delegation from the Council to do so.

6 This turned upon the meaning of part of the instrument of delegation. Justice Pain was persuaded that, properly understood, the delegation did duly delegate to the person who signed the development consent authority to do so. The point was a point of construction of the form of the authority.

7 The appellant’s grounds of appeal challenged the validity of that construction. Following the institution of the appeal, the Council sought and obtained advice from senior counsel who, relevantly, said that the appellant’s contention that the exercised power under the delegation was excluded was the only rational interpretation that could be placed on the terms of the delegation.

8 Senior counsel advised that the appeal ought to be resolved by indicating no opposition to the Court to making a declaration as to the invalidity of the consent. Mr Donnellan said that after due consideration he received instructions from the Council to accept that advice. Accordingly, the consent orders to which I have referred were made.

9 Section 6(1) of the Suitors Fund Act provides that:

“If an appeal against the decision of a court:
(a) to the Supreme Court on a question of law or fact; ….
succeeds, the Supreme Court may on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.”

This application is made in reliance on that subsection.

10 Counsel helpfully referred to the decision of this Court in Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, particularly at 494, where two members of the Court – Kirby P and Samuels JA – said that the issues for consideration included whether the appeal was against a decision and, if so, whether it was a decision of a court and, if so, whether it succeeded on a question of law.

11 There could be no doubt here that this appeal was against a decision and that decision was a decision of a court. It also seems to me that clearly here there was a question of law as to the meaning of the delegation. Accordingly, in my opinion, the Court’s discretion is enlivened under s6(1).

12 Counsel also referred me to a decision of the Court of Criminal Appeal, R v Hookham (No 2) (1993) 32 NSWLR 345 and the judgment of Priestley JA at 346-347. There his Honour said that the reasoning behind the Act must be to the general effect that the Court system, with what has happened prior to the appeal being upheld, has made a mistake and that there will be at least some circumstances in which costs caused by the fault of the system should not be visited on the respondent.

13 His Honour referred to two categories, one where the respondent has succeeded only because the Court below erroneously took a view of the law or the facts which the respondent had not put to that Court and said, in that case, there could be no reason for withholding the exercise of discretion in favour of granting the certificate.

14 At the other end of the scale, if counsel persuaded the Court below to act upon the basis of the decision which had been overruled it could be said it was not the system that had been the main cause of the mistake, but the respondent. Discretion would then be exercised against the respondent. In the case before the Court of Criminal Appeal, Priestley JA said it fell into neither of those obvious categories. The arguments which were put to the Judge below could in no way be described as irresponsible, improper or baseless. It happened the Court did not think they were correct.

“Although my opinion is that the trial judge should not have accepted the arguments of H’s counsel I do not think the matter was so clear that any blame can be attached to H or his counsel for putting them to the judge below.”

Accordingly, in that case, the certificate was granted.

15 It seems to me clear enough, having been taken to the judgment in the Court below by counsel, that this was a case in which an argument was put which, quite appropriately, her Honour in the Court below thought correct.

16 Further, the advice of senior counsel persuaded the Council that the decision below could not properly be defended on appeal and, quite properly, on the advice of its solicitor, the Council decided not to unnecessarily take up the time of the Court on an argument which, on advice, could not succeed.

17 In those circumstances I am satisfied that the Court has a discretion to make the order sought and should exercise that discretion in favour of the Council.

18 The consent order, a copy of which has been handed up to me, is, for some reason, wrongly intituled in the Land and Environment Court of New South Wales. The record should be corrected by amending the order to delete that title and put in its place, “In the Supreme Court of New South Wales, Sydney Registry, Court of Appeal.” I order that amendment to be made and the Council of the City of Gosford, within forty-eight hours, to file a form of consent order so amended. That amendment having been made, I make the following order:

That the first respondent, the Council of the City of Gosford, have an indemnity certificate pursuant to s6 of the Suitors Fund Act in respect of the appeal by Elizabeth Gee, No CA 40780/02, against the orders made in the Land and Environment Court.
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Last Modified: 06/24/2003