Gilling v Hawkesbury City Council

[1998] NSWLEC 97

Land and Environment Court

of New South Wales

CITATION:	Gilling v. Hawkesbury City Council [1998] NSWLEC 97
PARTIES:	APPLICANT Gilling RESPONDENT Hawlkesbury City Council
FILE NUMBER(S):	20127 of 1997
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	07/05/98
EX TEMPORE JUDGMENT DATE :	05/07/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr. C. Gough, Solicitor Storey & Gough RESPONDENT Mr J. Cole, Solicitor Abbott Tout

JUDGMENT:

This is an application by the Council for an order for costs in class 2 proceedings which were commenced in the Court last year, were fixed on 6 November 1997 for hearing by the Court for three days (20 to 22 January 1998) but which were terminated when the Applicant filed a Notice of Discontinuance on 12 January 1998, that is some seven or eight days before the fixed hearing date.

The Council's application for costs is based upon the fact of the discontinuance by the Applicant of the proceedings a little more than a week before the fixed hearing date.

Mr Gough, who appears for the Applicant, recognises that there is a body of authority in the Court that supports the proposition that, when proceedings are discontinued at or prior and close to, a fixed hearing date, the Court normally will award costs against the discontinuing party and that this principle operates as "exceptional circumstances" within the meaning of the Court's Practice Direction relating to costs in class 1 and class 2 proceedings. Mr Gough, however, submits that when regard is had to the litigation history, the Court would not regard the discontinuance by the Applicant as being unreasonable in the circumstances and, more relevantly, would not regard it as a cause or justification for an award of costs in accordance with the Court's Practice Direction.

I have been assisted by the competing arguments. Much affidavit evidence had been filed which indicates to me that the proceedings raised complex and somewhat ill-defined issues. I do not need to descend into the details of those matters because I have come to the conclusion that the matter is to be resolved today principally on account of the procedural aspects of the case, but I should note in passing that considerable complication appears to have arisen from the imprecise nature of the appeal and from the lack of precise identification of the issues raised by it.

Somewhat uncharacteristically, the only direction for the filing of a statement of issues in the case was that given to the Applicant. (Conventionally, such a direction is given to the Respondent Council but in this case no such direction was given.) The Applicant, through her Solicitor, made a number of attempts to identify the issues and, although the issues so identified are capable of being interpreted as raising a number of wide-ranging matters, they are also capable of being understood as merely seeking some certainty and content in a standard condition attached to the caravan licence granted by the Council to the Applicant in relation to a specific prohibition on the installation of relocatable and manufactured homes on flood liable land. I think, in truth, that the latter was the true issue in the case, namely whether that standard condition had operation and effect in respect of the Applicant's land situated at 78 Greens Road, Lower Portland, and if so to what extent.

Be that as it may, belatedly the Council served and filed its statement of issues. (As I have said no direction was given for such a course). Two things are to be noted in respect of the Council's conduct in addition to the fact that no direction was given. Firstly the issues were raised belatedly in the litigation history and secondly they were wide-ranging in the extreme. Furthermore, they were accompanied by a Motion filed in January 1998 whereby the Council sought to raise points of law including the question whether the Court had jurisdiction to hear the appeal.

For such a Motion to be filed two weeks before the hearing of a case (fixed more than six weeks earlier) injected into the case considerable uncertainty and raised matters of far reaching implication. No doubt it was because the Council also so perceived its Motion and its statement of issues that at the same time it filed its Motion seeking that the hearing dates fixed for just two weeks off be vacated and that the case be listed to be heard by a Judge.

It follows that it was these significant procedural changes injected late in the litigation history and within a fortnight of the fixed hearing dates, that evidently led the Applicant to the decision that she should discontinue the appeal. It is obvious that if effect were given to the Council's Motion the appeal would not only go over to a future date but would be far more wide-ranging in its compass and would involve a hearing and the costs of the hearing before a Judge of the Court.

In all the circumstances I am satisfied, by the submissions advanced on behalf of the Applicant, that the decision to discontinue the appeal in the light of the foreshadowed escalation of the case belatedly injected by the Council in the litigation history, was justifiable and reasonable and ought not carry any adverse consequences for the Applicant in costs.

In short, I am satisfied that the discontinuance, properly understood in the light of the litigation history, does not constitute, in this particular case, "exceptional circumstances" within the meaning of the Court's Practice on costs and, for that reason, I am of the opinion that there is no justification for an order for costs in favour of the Council against the discontinuing party called for in this case, and I so determine.

(Counsel addressed on costs)

Consequent upon my ruling that the Council's Motion for costs against the discontinuing party should be dismissed, Mr Gough on behalf of the Applicant has asked for costs of today's Motion on the basis that his client was victorious and should, on that account, receive an order for costs on the Motion. This application was vigorously opposed by the Council. But for the fact that there was a prima facie or presumptive entitlement to costs against the discontinuing party, which in my opinion arose on the face of this case, the Applicant's application for costs would have been granted. However, in the light of that presumptive entitlement which has only been rebutted by the case presented on behalf of the Applicant today, I consider that it is appropriate that no order be made as to costs of the hearing of the Motion and I so order.

For all the foregoing reasons there shall be no costs order made in the proceedings.