Haddad v The Minister Administering the Heritage Act

[1988] NSWLEC 158

Land and Environment Court

of New South Wales

CITATION:	Haddad & Ors v The Minister Administering the Heritage Act [1988] NSWLEC 158
PARTIES:	APPLICANT Haddad RESPONDENT The Minister Administering the Heritage Act
FILE NUMBER(S):	30125 of 1985
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Land And Environment Court Act Repeal And Ammendment Act 1979 Miscellaneous Act (Planning)
CASES CITED:	Morosi v. Mirror Newspapers Ltd. ((l977)
DATES OF HEARING:	22/05/86, 01/09/86, 29/09/86
DATE OF JUDGMENT:	02/10/1988
LEGAL REPRESENTATIVES:	APPLICANT Mr Webster RESPONDENT Mr Hale

JUDGMENT:

HIS HONOUR: On 27 July l987 I fixed compensation in this matter in the sum of $625,820 and, at the request of the parties, reserved all questions of costs. The respondent has appealed to the Court of Appeal and in the meantime I have been asked to determine the costs before the Land and Environment Court.

Three issues of costs have been argued before me:-

l. What order should be made in relation to the costs thrown away by the vacation, on 24 March 1986, of the hearing set to commence on 7 April 1986? These costs were reserved by Perrignon J. Both parties ask for an order for costs in their favour.

2. What order should be made in relation to the costs of the proceedings arising between 25 March l986 and 26 September 1986? Again, each side asks for costs.

3. What order should be made in relation to the general costs of the proceedings? The applicants submit that costs should abide the event of the litigation and the respondent submits that a special order for costs should be made apportioning costs according to the manner in which the issues were determined by the Court.

l. Reserved_costs_thrown_away_by_vacation_of_hearing_date_on_24_March_1986

The parties have filed affidavits outlining the events leading up to the Notice of Motion made by the applicant to Perrignon J. on 24 March 1986 to vacate the hearing dates commencing on 3 April 1986. Each blames the other for the adjournment. The applicants say that it was the late service on them on 2l March l986 of a report by Dr. Fisher which precipitated the vacation of the hearing dates. On the other hand the respondent submits that it was the service by the applicants of the Vella report on 20 February l986 which first crystallised the applicants' claim and led to the report by Dr. Fisher.

I have had regard to the extensive correspondence between the solicitors for the parties in the months leading up to 24 March l986 and to other relevant documentary material placed before the Court. I do not intend to set forth my analysis of the events leading to the vacation of the hearing dates other than to say that I conclude that the primary cause of the adjournment is to be laid at the feet of the respondent. If the respondent had complaints about the manner of preparation of the applicants' case he could and should have approached the Court for appropriate orders. However, this did not occur notwithstanding appearances before the Registrar on 3 December l985, 20 February l986 and ll March l986 when directions were given. I note that the last appearance included a direction by the Registrar that all statements of evidence to be relied on were to be filed and served by 20 March l986.

In my opinion the costs reserved by Perrignon J. should be paid by the respondent.

2. The_costs_of_the_proceedings_between_25_March_l986_and_26_September_1986

During this 6 months period until Perrignon J. directed that the matter be again listed for hearing, further extensive manoeuvring occurred between the parties. Directions were given by the Court on 22 May 1986, 1 August 1986 and 29 August 1986.

On behalf of the applicants Mr. Webster submits that the delay during this period of time was caused by the refusal of Dr. Fisher to provide a final report. On the other hand Mr. Hale, on behalf of the respondent, maintains that the delay in Dr. Fisher's report was caused by the failure of the applicants to provide to the respondent's solicitor essential information to enable Dr. Fisher to complete his report. Mr. Hale says that the impasse was finally broken by the respondent. It is submitted that the respondent was justified in taking the stand he took and is entitled to the costs covering the period of time between 25 March and 26 September 1986.

Again, I record that I have considered the exchange of correspondence between solicitors during this period of time and the reports and documents coming into existence and later tendered in evidence. I do not believe that I need to be specific in my assessment of the stratagems of the parties, suffice to say that I have carefully considered all the material and submissions made to me.

In my opinion if the respondent had any grievance his legal advisers could and should have moved the Court for relief. Examination of the file reveals that during this period directions were given by the Court in May and twice in August 1986. The file does not reveal any Notice of Motion by the respondent seeking relief and alleging inadequate information had been supplied by the applicants thus preventing expert reports from being prepared. Again, it seems to me that a good deal of the delay in this period was caused by the respondent and not by the applicants and the applicants ought have their costs incurred of the interlocutory proceedings and generally between 25 March and 26 September l986.

3. The_costs_generally_of_the_proceedings.

The applicants ask for an order for costs generally of the proceedings. The respondent submits that a special order for costs should be made and costs ought be apportioned between the parties in accordance with the manner in which the issues were determined by the Court. Since the respondent succeeded on the post-resumption disturbance claim, it is the submission of Mr. Hale that a substantial reduction should be made in the overall costs to be awarded in favour of the applicants.

For the applicants, Mr. Webster submits that since the passing of the Miscellaneous Acts_(Planning)_Repeal_and_Amendment_Act, l979, which amended the Public Works_Act and omitted, inter alia, section 106 of that Act, the costs of compensation actions in the Court are governed by section 69(2) of the Land and_Environment_Court_Act. He continues that while costs are therefore in the discretion of the Court, in this instance the costs should follow the event of the litigation because no reasons have been shown why a special order should be made.

The applicants further submit that the issue of post-resumption disturbance was not a discrete one but a sub-issue of the main disturbance claim. It is very difficult to divide the disturbance claim up and point to evidence exclusively concerned with the post-resumption claim. There is an overlapping of factual matters and expert opinion into the disturbance claim generally. I accept these observations.

Mr. Webster further submits that to make a special order with respect to the post-resumption issue will lead to the task of the taxing officer being made nigh impossible and deprive him of his discretion.

I generally accept the applicants' submission save to say that if a special order for costs of an issue is justified, the Court should not draw back from making it; see Morosi_v._Mirror_Newspapers_Ltd. ((l977) 2 NSWLR 749 at 809).

However, I am not satisfied in the particular circumstances of this case that I should make a special order apportioning the costs of the issue of post-resumption disturbance. The taxing officer, who must have regard to Part 52 of the Supreme Court Rules, will take account of the manner of determination of the issues by the Court and tax the bill of costs accordingly.

Conclusion

I note that on 10 April 1985 Perrignon J. ordered the applicants to pay the respondent's costs thrown away by the vacation of the hearing date at that time. This order stands. On this application for costs I order that the respondent pay the applicants' costs thrown away by the vacation of the hearing on 24 March 1986. I further order that the respondent pay the applicants' costs generally of the application. The exhibits may be returned.

I HEREBY CERTIFY THAT THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE PAUL STEIN.

Associate