Ibrahim v Waverely Council
[2001] NSWLEC 281
•12/07/2001
Land and Environment Court
of New South Wales
CITATION: Ibrahim v Waverely Council [2001] NSWLEC 281 PARTIES: APPLICANT
RESPONDENT
Michael Ibrahim
Waverley CouncilFILE NUMBER(S): 10427 of 2001 CORAM: Cowdroy J KEY ISSUES: Costs :- discontinuance LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979 s 69
Land and Environment Court Rules 1996 Pt 11 r 5(1)CASES CITED: Chris Lonergan and Associates v Byron Shire Council [1998] NSWLEC 78;
David Crane and Associates Pty Limited v Kogarah Council [1998] NSWLEC 121;
Manly Wharf Pty Limited v Manly Council (1997) 98 LGERA 245;
Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622DATES OF HEARING: 6/12/01 DATE OF JUDGMENT:
12/07/2001LEGAL REPRESENTATIVES:
APPLICANT
N/ASOLICITORS
N/ARESPONDENT
SOLICITORS
Mr B Brockwell
Waverley Council
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 10427 of 2000
CORAM: Cowdroy J
DECISION DATE: 7/12/01
Respondent
1. By Notice of Motion filed on 29 October 2001 the respondent (“the council”) seeks an order from the Court that the applicant pay the costs of the proceedings.
Facts
2. By application class one (“the appeal”) filed on 21 May 2001 the applicant appealed against the council’s refusal of consent to development application 130/71 (“the application”). The application was to extend the hours of operation of an existing pizza shop located at 53 Glasgow Avenue, North Bondi (“the site”).
3. On 4 September 2001 Helen Guerman, Legal Administration Officer of the council, wrote to the applicant (“the letter”) advising him of the effect of cl 115(1)(h) of the Environmental Planning and Assessment Regulations 2000 (“the Regulation”). The letter relevantly states as follows:-
It is the Council’s view that in Class 1 proceedings the Court cannot determine an application that does not satisfy the requirements of clause 115 of the Environmental Planning and Assessment Regulations 2000. Please obtain and provide to the council, as a matter of urgency, the necessary owner’s consent.
4. On 18 September 2001 the council received notice of the applicant’s discontinuance of the appeal.
Legal principles
5. The Court may order the discontinuing party to pay the costs of any party against whom the discontinued claim was brought: Part 11 r 5(1) of the Land and Environment Court Rules 1996. Similarly, s 69 of the Land and Environment Court Act 1979 confers on the Court a discretion to award costs which is subject to the duty to act fairly: see Oshlack v Richmond River Council (1998) 193 CLR 72 and Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254.
6. However, in the class one jurisdiction of this Court the ordinary practice of the Court is to make no order as to costs unless there are demonstrated exceptional circumstances: see Land and Environment Court Practice Direction 1993 par [10] (“the Practice Direction”).
7. In Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 the test adopted by McHugh J, and followed in this Court, was one of reasonableness (see Lai Qin at 625; and see also Hayden Theatres Pty Limited v Penrith City Council (1999) 105 LGERA 230 and Duncan v Moore (2000) 107 LGERA 430). If the parties have conducted the litigation in a manner that could be reasonably expected then it will generally be appropriate for the Court to make no order as to costs: see David Crane and Associates Pty Limited v Kogarah Council [1998] NSWLEC 121.
Findings
8. In the absence of evidence, the Court cannot be satisfied that the discontinuance necessarily resulted solely from the letter. The discontinuance may have arisen as the result of numerous considerations by the applicant, one of which may have been the content of the letter. In Chris Lonergan & Associates v Byron Shire Council [1998] NSWLEC 78 the Chief Judge observed that ‘it is not unusual for the council to set about preparing a case and then be faced with a discontinuance...’.
9. However, in each case the question to be considered is the reasonableness of the conduct of the discontinuing party. If the proceedings have achieved a result which is satisfactory to both parties and thereby resulting in a negotiated settlement and discontinuance follows, it would be an exceptional case for costs to be ordered against the discontinuing party.
10. In the instant proceedings the Court and the respondent is bereft of any knowledge of the reason for the discontinuance by the applicant. The proceedings may even have been commenced for a totally frivolous purpose, thereby incurring costs unnecessarily.
11. In Manly WharfPty Limited v Manly Council (1995) 98 LGERA 245 Bignold J comprehensively reviewed the principles which should guide the Court in the exercise of its discretion where discontinuance takes place. I respectfully adopt His Honour’s conclusions. The Court must however consider the application of these principles in the circumstances of each case.
12. The applicant has failed to provide to the council any reason for the discontinuance. Instead it has, without explanation, discontinued the proceedings. Accordingly the Court is unable to determine the basis for the discontinuance of the proceedings.
13. In the preparation of its case the council has attended a call over, prepared a statement of issues and has conducted the proceedings appropriately. It is therefore entitled to be compensated for the costs thrown away by the applicant. In these circumstances the Court concludes that the conduct of the applicant is unreasonable in the conduct of its litigation and that such conduct constitutes exceptional circumstances.
Orders
14. The Court orders:-
1) The applicant is to pay the costs of the respondents including the costs of the notice of motion.
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