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Gibson v Mosman Municipal Council

Gibson v Mosman Municipal Council

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Case Copied 30 August 2001 8 min read

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Reported Decision: 116 LGERA 397

Land and Environment Court

of New South Wales

CITATION: Gibson v Mosman Municipal Council [2001] NSWLEC 201 revised - 30/08/2001

PARTIES:
APPLICANT
James Gibson
RESPONDENT
Mosman Municipal Council

FILE NUMBER(S): 11139 of 2000

CORAM: Talbot J

KEY ISSUES: Costs :- class 1 proceedings - determination of preliminary issue of law

LEGISLATION CITED: Roads Act 1993 s 138
Practice Direction 1993 par 10

CASES CITED: Cadonia Pty Limited v Leichhardt Council [1993] NSWLEC, 5 August 1994, unreported;
Care and Anor v Canterbury City Council [2001] NSWLEC 169, unreported;
Evans v Bartlam [1937] AC 473;
Latoudis v Casey (1990) 170 CLR 534;
Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78, unreported;
McDonald Industries Ltd v Sydney City Council (1980) 43 LGRA 428;
Nahum v North Sydney Municipal Council (1994) 83 LGERA 200;
Norbis v Norbis (1986) 161 CLR 513;
Oosthuizen v Sutherland Shire Council [2001] NSWLEC 137, unreported;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365;
Prince v North Sydney Council [2001] NSWLEC 165, unreported;
Teller Properties Pty Ltd v Randwick City Council (1994) 84 LGERA 369

DATES OF HEARING: 27/08/2001

DATE OF JUDGMENT:
08/30/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr B J Preston SC with Mr M S Henry (Barrister)
SOLICITORS
McConnell Jaffray, Lawyers
RESPONDENT
Ms S A Duggan (Barrister)
SOLICITORS
Hill Thomson & Sullivan

JUDGMENT:

IN THE LAND AND Matter No. 11139 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 30 August 2001

James Gibson

Mosman Municipal Council

Respondent

REASONS FOR JUDGMENT

1. On 22 June 2001 the Court delivered a judgment on a preliminary issue which raised a question of law in respect of the jurisdiction of the Court to grant consent to certain works, pursuant to s 138 of the Roads Act 1993 (“the Roads Act”). No issues of fact were decided. The proceedings are an appeal against the refusal of a development application made to the council. Prior to the filing of the statement of issues by the council no questions had been raised regarding the exercise of any function or discretion under s 138 of the Roads Act. It must be said, however, that in determining the development application by the refusal of consent, the issue of the functions and discretions under the Roads Act does not necessarily arise. It certainly did not in this case. However, the council raised the issue of jurisdiction in the statement of issues.

2. The applicant was successful to the extent that the Court was not prepared to preclude the prospect that it may ultimately exercise the functions and discretions that the council has as the appropriate roads authority.

3. The applicant has now moved the Court for an order that the respondent council pay his costs in respect of the preliminary hearing.

The application of the Practice Direction 1993 par 10 (“Practice Direction…

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: [2001] NSWLEC 201
Decision Date: 08/30/2001

CaseChat Overview and Summary

In Gibson v Mosman Municipal Council, James Gibson, the applicant, sought to appeal the council's refusal of a development application. Gibson applied for costs associated with a preliminary hearing, where the court considered the jurisdiction to grant consent for certain works under the Roads Act 1993. The council raised the issue of jurisdiction in the statement of issues, prompting the court to address the question of whether the raising of a preliminary question of law could be considered an exceptional circumstance warranting an order for costs. The case turned on the interpretation of Practice Direction 1993 par 10, which generally discourages costs orders in planning and building appeals except in exceptional circumstances.

The court examined the relevant case law and Practice Direction, ultimately determining that the raising of a preliminary question of law constituted an exceptional circumstance. The court found that the raising of the jurisdictional issue by the council went beyond mere merit issues and was akin to raising a distinct legal issue. The court cited Maurici v Chief Commissioner of State Revenue, where the Court of Appeal emphasized that judges should not be fettered by rigid rules and should rely on established guideline principles. The court concluded that in these circumstances, the applicant was entitled to an order for costs in relation to the determination of the preliminary issue.

The court's reasoning was grounded in the principle that preliminary questions of law should be treated as exceptional circumstances. The court followed the approach in Nahum v North Sydney Municipal Council, where it was held that costs will normally follow the outcome in respect of the determination of preliminary questions of law. The court also noted that the raising of a jurisdictional issue in the appeal process warranted a departure from the general principle of not awarding costs in planning and building appeals. The court's decision was consistent with the approach taken in other recent cases, where the raising of distinct legal issues led to an order for costs.

In conclusion, the court granted the applicant's motion for costs associated with the preliminary hearing, finding that the raising of the jurisdictional issue by the council constituted an exceptional circumstance under the Practice Direction. The formal order required the respondent to pay the applicant's costs of the hearing and the notice of motion.

Orders