Georges River Council v The Congregational Christian Church in Samoa, Parish of Sydney Incorporated
[2018] NSWLEC 200
•12 December 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: Georges River Council v The Congregational Christian Church in Samoa, Parish of Sydney Incorporated [2018] NSWLEC 200 Hearing dates: 12 December 2018 Date of orders: 12 December 2018 Decision date: 12 December 2018 Jurisdiction: Class 4 Before: Moore J Decision: (1) The First and Second Respondents are to pay the Council’s costs of these proceedings (other than the costs associated with the affidavits of Richard Haydon dated 5 July 2018 and 30 November 2018 and associated documents) as agreed or assessed.
Catchwords: COSTS - consent orders against First Respondent resulting in dismissal of proceedings against Second Respondent - Council seeks costs against both parties (except for costs associated with two specified affidavits) - presumption that costs follow the event - no reason to depart from presumed position - Respondents ordered to pay Council’s costs as agreed or assessed Legislation Cited: Protection of the Environment Operations Act 1997 Category: Costs Parties: Georges River Council (Applicant)
The Congregational Christian Church in Samoa, Parish of Sydney Incorporated (First Respondent)
Taeipo Malifa (Second Respondent)Representation: Counsel:
Solicitors:
Mr M Seymour, barrister (Applicant)
Taeipo Malifa (As agent for First Respondent)
Self-Represented (Second Respondent)
HWL Ebsworth (Applicant)
File Number(s): 23816 of 2018 Publication restriction: No
EXTEMPORE JUDGMENT
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HIS HONOUR: In these proceedings the substantive issues have been resolved by the making of consent orders against the incorporated church known as The Congregational Christian Church in Samoa, Parish of Sydney Incorporated (the Church). The orders that had been sought in these proceedings against Mr Malifa, the Minister of the Church, are not pressed and, by agreement, I have dismissed the substantive proceedings against him.
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Georges River Council (the Council) seeks its costs of the proceedings to be ordered against both the Church and against Mr Malifa personally. Those costs sought are, for reasons I canvassed earlier with Mr Seymour, counsel for the Council, to be moderated by the Council not seeking the costs associated with the preparation of the affidavits of Richard Haydon dated 5 July 2018 and 30 November 2018 and of the material associated with them. It is unnecessary for me to repeat the reasons why that occurs.
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However, I have had what can only be regarded as a conventional costs application made by the Council. It is a costs application based on the presumption that, in civil litigation such as this, costs will follow the event - the event being the effective capitulation by the Church to the making of the orders sought by the Council (they being orders concerning the emission of offensive noise).
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Mr Malifa raises, in his submissions to me as to why such costs orders should not be made, that there is no mention in the orders, now made by consent, of the Protection of the Environment Operations Act 1997. However, the concept of “offensive noise” is a creature of that statute and arises in these circumstances as a consequence of that statute permitting the making of orders concerning offensive noise and the curing of the impacts of such noise on nearby residential properties (as is here relevant).
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Although I accept, without reservation, the submissions and statements, being in effect evidentiary statements, made by Mr Malifa from the Bar Table as to the nature of the work and activities undertaken by the Church in supporting its congregation and the members of the community that it serves, undoubtedly works of good purpose undertaken in the name of the Church’s religious and social and communal activities, nonetheless, the proceedings have become necessary as a consequence of the failure on the Council’s case to mitigate and rectify impacts of noise on adjoining residential properties.
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The question of whether or not there should be a time permitted by the Council for the Church and Mr Malifa to make the costs that I propose to order be paid is a matter between the Church and the Council and not a matter for the Court.
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Although I have a deal of sympathy for the Church, nonetheless, the proceedings were rendered necessary because of the conduct of the premises occupied by the Church for its activities.
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I am satisfied under those circumstances it is appropriate to make an order for costs. I therefore order that:
The First and Second Respondents are to pay the Council’s costs of these proceedings (other than the costs associated with the affidavits of Richard Haydon dated 5 July 2018 and 30 November 2018 and associated documents) as agreed or assessed.
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Decision last updated: 13 December 2018
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