Holroyd City Council v Tisdale

[2007] NSWLEC 282

Land and Environment Court

of New South Wales

CITATION:	Holroyd City Council v Tisdale [2007] NSWLEC 282
PARTIES:	APPLICANT Holroyd City Council RESPONDENT Terry Tisdale
FILE NUMBER(S):	41255 of 2006
CORAM:	Pain J
KEY ISSUES:	Costs :- exercise of discretion to award costs in civil enforcement proceedings - notice of discontinuance filed without consent
LEGISLATION CITED:	Land and Environment Court Act 1979 s69(2) Land and Environment Court Rules 1996 Pt 11 r 5(1) , Pt 15 r 7 Local Government Act 1993 s629(1)
CASES CITED:	Cachia v Hanes (1994) 179 CLR 403; Kiama Council v Grant [2006] 143 LGERA 441 ; Latoudis v Casey (1990) 170 CLR 534; Newcastle City Council v Winwood [2005] NSWLEC 294
DATES OF HEARING:	3 May 2007
EX TEMPORE JUDGMENT DATE:	3 May 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Johnson SOLICITOR McKees RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

3 May 2007

41255 of 2006 Holroyd City Council v Tisdale

EX TEMPORE JUDGMENT

1 Her Honour: I have before me two Notices of Motion for costs, one by the Applicant in this matter, Holroyd City Council, seeking its costs of these proceedings and the costs of the motion before me today. I have another motion filed by Mr Tisdale, the Respondent in these proceedings, seeking various orders as follows:

1. The Applicant pay the respondent costs of their dismissed interlocutory proceedings of the 22nd December 2006 by Justice Talbot by way of gift to the Greystanes Primary School.
2. The Applicant pay the respondent costs of these proceedings by way of gift to the Greystanes Primary School.
3. The applicant pay the respondent’s cost of this Motion by way of gift to the Greystanes Primary School.
4. Such further or other Orders as the Court thinks fit.

2 A notice of discontinuance has been filed by the Council in these proceedings. Both parties are claiming their costs of the proceedings and of their respective costs motions.

3 I note that Mr Tisdale is representing himself and has done so throughout the proceedings before this Court. Consequently I note that he is entitled to disbursements only on the basis of the decision in Cachia v Hanes. (1994) 179 CLR 403.

4 The substantive Class 4 proceedings seeking declarations and orders in relation to work undertaken by Mr Tisdale in Benaud Street Park, Greystanes (the park) were commenced on 20 December 2006. The proceedings were undertaken pursuant to s 629(1) of the Local Government Act 1993 (the LG Act) which provides:

A person who, without lawful excuse, wilfully or negligently injures, damages or unnecessarily disturbs any plant, animal, rock or soil in a public place is guilty of an offence.

5 Talbot J decided not to issue an interlocutory injunction on 22 December 2006. The Court transcript records that Mr Tisdale advised the Court that his work in the park was finished. The proceedings were discontinued by the Council without Mr Tisdale’s consent on 15 March 2007.

6 The affidavit evidence relied on by the Council were two affidavits of Mr Graham McKee sworn 1 May 2007 and 20 December 2006, an affidavit of Ms Shaireen Buksh sworn 19 April 2007, and an affidavit of Ms Lindy Hall sworn 5 March 2007.

7 Mr Tisdale relied on part of an affidavit sworn by him on 19 April 2007, an affidavit sworn by him on 1 May 2007, and part of an affidavit of Ms Denise Walsh sworn 2 May 2007.

8 Events leading up to the commencement of proceedings relied on by the Council are reflected in letters and correspondence attached to the affidavit of Ms Buksh. This material identifies that Mr Tisdale was undertaking the work complained of in the park.

9 On 13 December 2006 the Council issued a Notice of Intention to Serve an Order to Mr Tisdale in relation to unauthorised landscaping works in Bernaud Park (affidavit of Mr McKee sworn 20 December 2006). On that day Mr Tisdale advised the Council that he would not stop the work, that the police can arrest him, he is not stopping, that he wanted to be arrested, and that “these people are going to be shown for how small they are” (annexure to McKee affidavit above).

10 On 19 December 2006 Mr Tisdale advised the Council he had worked over the weekend, the work was nearly done, someone had donated volcanic ash and a community garden was going to be built. He could not see what he had done wrong.

11 In his letter in reply date 22 January 2007 Mr Tisdale said he would only enter into the undertaking if the Council donated money to the Greystanes Primary school’s greening program. A letter of 29 January 2007 from Mr Tisdale to Merv Ismay, General Manager Holroyd City Council, expresses grave concern about the undertaking. The letter from Mr Tisdale dated 8 March 2007 stated that as the Court had accepted that he was a person of good character and no order for an interlocutory injunction was granted at the interlocutory injunction application hearing then there was no further need for these proceedings. That is an unfortunate misunderstanding of the need to resolve by agreement or by court hearing the substantive proceedings.

12 The Council’s chronology identifies the following relevant dates from the service of a Notice of Intention to Serve and Order for unauthorised landscaping work and is based on the affidavit material as follows:

13 December 2006	Notice of Intention to Serve an Order: unauthorised landscaping works in Benaud Park
Tisdale advises Council that he will not stop the work. Police can arrest him, he is not stopping, he wants to be arrested, “these people are going to be shown for how small they are”.
19 December 2006	Tisdale advises Council he had worked over the weekend, the work is nearly done, someone had donated volcanic ash and a community garden is to be built. He cannot see what he has done [wrong].
20 December 2006	Council commences Class 4 proceedings in the Land and Environment Court seeking declaration, injunction and interlocutory injunction.
19 January 2007	Council offers to resolve the proceedings by an undertaking to it and offers a form of undertaking.
22 January 2007	Tisdale advises that he will only negotiate an undertaking if funds are donated by the Council to Greystanes Primary School Greening Program.
29 January 2007	Tisdale describes Council’s draft undertaking as unconscionable.
31 January 2007	Council advises that costs is a separate matter to the substantive proceedings, but Council offers to discontinue on the basis that each party pay own costs if Tisdale enters into an agreed undertaking before next Court appearance. Tisdale asked to provide an alternative form of undertaking.
1 February 2007	Tisdale requires “neutral legal attorney” to broker the undertaking and demands that evidence and submissions be filed.
2 February 2007	Appearance before Biscoe J; further negotiations.
5 February 2007	Tisdale makes “Calderbank Offer” whereby he himself remediates Benaud Park and moves plants and mulch to Greystanes Public School.
6 February 2007	Tisdale agrees to mediation, but refuses to have lawyers involved. Council agrees to lawyers not being present. Tisdale refuses to allow Mayor to participate in mediation, then refuses mediation.
7 February 2007	Amended form of undertaking sent to Tisdale, with 5 year period included.
9 February 2007	Directions hearing before Biscoe J. No undertaking agreed, further directions made for preparation for hearing.
28 February 2007	Appearance before Pain J on return of subpoenas. Further form of undertaking provided to Tisdale, reducing period to two years and removing “watering” from the definition of “works”.
8 March 2007	Tisdale agrees to much of Council’s undertaking, but wants to weed in the Park.
9 March 2007	Tisdale offers undertaking as provided on 1 March but reduced to 1 year.
13 March 2007	Council accepts undertaking offered by Tisdale on 9 March 2007.
15 March 2007	Notice of Discontinuance filed before Biscoe J

13 The chronology shows that settlement discussions were commenced and a letter sent to Mr Tisdale by the Council’s solicitors on 19 January 2007. The form of undertaking sent in that letter was attached thereto as follows:

Headed “undertaking to Holroyd City Council,”
“I undertake to Holroyd City Council not to cause others or carry out any works in Benau Park without the written permission of council. Works include but are not limited to planting, weeding, mulching, pruning, fertilising, watering or the like.”

14 Numerous letters between the parties ensued during February 2007. I note that in his letter in reply of 22 January 2007, Mr Tisdale said he would only enter into the undertaking if the Council donated money to the Greystanes primary school’s greening program. A further letter of 29 January 2007 from Mr Tisdale expresses grave concern about the undertaking.

15 Mr Tisdale advised that a major concern for him was the Council imposing a time limit of none, then five and then two years in the undertaking as he considered one year was a reasonable period. The form of undertaking accepted by the Council through its solicitor’s letters dated 13 March 2007 accepted an earlier Calderbank offer from Mr Tisdale dated 9 March 2007. The Council submits that as it had a binding undertaking from Mr Tisdale it acted correctly in discontinuing the proceedings in order to avoid further costs. I note that the undertaking attached to the agreement has not been executed by Mr Tisdale and there was some suggestion in submissions that he did not necessarily consider he was subject to an undertaking. If that does become an issue between the parties it will have to be resolved elsewhere.

16 The circumstance that Mr Tisdale received no notice that the discontinuance was to be filed until the day it was handed up in Court does not impact on the costs determination before me. I must decide that the discontinuance by the Council was reasonable.

17 I note that while the undertaking attached to the letter of 13 March 2007 has not been executed by Mr Tisdale, and there was some suggestion in his submissions that he did not necessarily consider he was subject to an undertaking, in the correspondence before the Court it is clear that there was an acceptance by the Council of Mr Tisdale’s offer of the undertaking of 9 March 2007 and that the undertaking would appear to therefore exist.

18 Having reviewed the history of the matter it is clearly a matter that should be settled and the terms of the undertaking appear reasonable and are not punitive in relation to Mr Tisdale. They simply require that he, as any member of the public should, get the Council’s permission before undertaking the specified work. I consider that the Council was reasonable in seeking such an undertaking in order for a resolution of the proceedings to be achieved satisfactorily. The fact that the Council agreed to a one year period in the undertaking when it was quite open to it to have an undertaking of unlimited duration suggests it was using its best endeavours to resolve the matter without incurring unnecessary costs. Given Mr Tisdale’s undertaking to the Council in Court on 22 December 2006 that his work had finished it is a matter that should have settled shortly thereafter in my view.

19 I appreciate that Mr Tisdale is not legally represented but consider the Council’s undertaking was reasonable in the circumstances. The correspondence makes clear that there was considerable time taken in negotiations with Mr Tisdale on matters that were straightforward and could have been resolved promptly.

20 I accept that Mr Tisdale’s statements from the Bar table that his actions overall in relation to work conducted in the park are of environmental benefit are genuine. My decision today must be limited however to the conduct of the parties in this litigation only. As has been observed on many occasions the Court must not embark on a de facto hearing of the case in seeking to determine costs. The submissions from Mr Tisdale about the community benefit of his work in the park and of his best intentions in that regard are not relevant to my decision as to how I should exercise my discretion on costs.

Court’s powers

21 The Court has power to award costs in Class 4 proceedings as identified in s 69(2) of the Land and Environment Court Act 1979. I have broad discretion to award costs, which discretion must be exercised judicially. It is important to record that costs are compensatory not punitive, as has been observed on many occasions, see Latoudis v Casey (1990) 170 CLR 534.

22 Particular rules apply. Part 11 r 5(1) of the Land and Environment Court Rules 1996 (the Court Rules) provides:

If a party to any proceedings discontinues them in whole or in part, the Court may, on the application of another party, order the discontinuing party to pay the costs of any party against whom the discontinued claim was brought and who does not consent to the discontinuance.

Part 15 r 7 of Court Rules provides:
The Court may order the respondent to pay the costs of the proceedings where a respondent satisfies or causes to be satisfied the claim of the applicant after the proceedings have been commenced.

I will come to that shortly.

23 In relation to relevant case law, of particular relevance is the decision of Kiama Council v Grant [2006] 143 LGERA 441 which the Council’s counsel relied on. That is a decision of Preston J in which he reviewed a number of cases in relation to costs, and at [80] he set out usefully a distillation of relevant principles as follows:

The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits:
(a) where one party effectively surrenders to the other party by:

(i) discontinuing without the consent of the other party; or
(ii) giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party;

the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party; and

(b) where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs, the proper exercise of the costs discretion will ordinarily be to make no order as to costs unless:

(i) one of the parties has acted so unreasonably that the other party should obtain the costs of the action; or
(ii) even if both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried so that the party should obtain the costs of the action.

24 The Council in its submissions has relied on three arguments. The first argument is in relation to Pt 15 r 7 which states that the Court may order the respondent to pay the costs of the proceedings where a respondent satisfies or causes to be satisfied the claim of the applicant after the proceedings have been commenced.

25 It is clear to me that in this case the Respondent satisfied the claim of the Applicant in entering into the undertaking. It is sufficient that the undertaking be agreed as between the parties and not necessarily be “signed off” by the Court. I rely on my decision in Newcastle City Council v Winwood [2005] NSWLEC 294 to that effect. I therefore consider that on this basis the Council should succeed in relation to costs.

26 The second argument put by the Council to support an order for costs in its favour was that the Respondent acted unreasonably and the Applicant acted reasonably. Essentially this is in reliance on the decision of Kiama Council v Grant above.

27 As is clear from my statements above, I consider that Council has acted reasonably in seeking to negotiate a settlement with Mr Tisdale and was reasonable in commencing the proceedings. It was reasonable and appropriate following the unsuccessful application for an interlocutory injunction on 22 December 2006 that that process be undertaken. I note that settlement negotiations commenced on 19 January 2007 with the Council’s solicitor’s letter and continued up to 13 March 2007. The matter should have been resolved more expeditiously in my view. The Council should have its costs on this basis also.

28 The third argument put forward by the Council was that it was almost certain to have succeeded. I did not hear the merits of this matter and as I have decided that the Council should be awarded costs in any event, I will not deal further with that argument.

Conclusion

29 I consider I should make a limited costs order in the Council’s favour from the time that settlement negotiations were commenced by the Council’s solicitor’s letter dated 19 January 2007. The response from Mr Tisdale was not reasonable and his behaviour has unnecessarily prolonged settlement. Accordingly I will award costs in the Council’s favour from 22 January 2007.

30 Mr Tisdale is unsuccessful in his application for costs and is not entitled to legal costs in any event.

31 In relation to the costs of the motion before me today, the Council has been successful and should be awarded the costs of that motion.

Order

32 The Court makes the following orders:

1. The Respondent is to pay the Council’s costs from 22 January 2007 as agreed or assessed.

2. The Respondent is to pay the Council’s costs of the motion dated 19 April 2007.