Liverpool City Council v Cauchi

[2005] NSWLEC 676

Land and Environment Court

of New South Wales

CITATION:	Liverpool City Council v L Cauchi Liverpool City Council v M A Farrugia t/as D&M Farrugia Excavating Liverpool City Council v D Farrugia t/as D&M Farrugia Excavating Liverpool City Council v J&L Cauchi Pty Ltd Liverpool City Council v J Cauchi [2005] NSWLEC 676
PARTIES:	Liverpool City Council Louise Cauchi (Def) Joseph Cauchi (Def) J & L Cauchi (Def) M A Farrugia (Def) D Farrugia (Def)
FILE NUMBER(S):	50115; 50116; 50117; 50118; 50119 of 2003
CORAM:	McClellan CJ
KEY ISSUES:	Costs :- Prosecution case Evidence for various defences Defendants did not identify issue of procedural fairness
DATES OF HEARING:	1-3 August 2005
EX TEMPORE JUDGMENT DATE:	08/03/2005
LEGAL REPRESENTATIVES:	I J Hemmings (Prosecutor) Matthews Folbigg (Sol - Prosecutor) M S Henry (Counsel - Cauchi) P S Barham (Counsel- Farrugia) Balmain Lawyers (Sol - Cauchi) Stoikovich Macri (Sol - Farrugia)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN CJ

WEDNESDAY 3 AUGUST 2005

50115/03 LIVERPOOL CITY COUNCIL v L CAUCHI
50116/03 LIVERPOOL CITY COUNCIL v M A FARRUGIA (trading as D&M Farrugia Excavating)
50117/03 LIVERPOOL CITY COUNCIL v D FARRUGIA (trading as D&M Farrugia Excavating)
50118/03 LIVERPOOL CITY COUNCIL v J&L CAUCHI PTY LTD
50119/03 LIVERPOOL CITY COUNCIL v J CAUCHI

JUDGMENT – On application for costs; see p 249 of transcript

1 HIS HONOUR: The defendants seek an order for costs. I do not believe that to be appropriate. When this matter was fixed for hearing the parties indicated that it was likely to take seven days. Various defences, some of which I have already referred to, were identified. As it happens, none of those defences related to the difficulties with respect to procedural fairness which have ultimately informed the reasons for my decision that the summons should be dismissed.

2 It seems to me that the issues which were to be litigated may well have occupied the court for many more days than has ultimately proved to be necessary. If the defendants themselves had identified the issue of procedural fairness, it could have been isolated at an early stage of these proceedings, which commenced in 2004, and litigated without the expense which all of the parties have now incurred.

3 The facts upon which the issue which has been determined depended were, of course, known to the defendants. It was not necessary that evidence be tendered before it could be said that the defendants were in a position to form a view as to whether or not a defence based upon procedural fairness was likely to succeed. I accept that the defendants have played their part in a responsible approach to the preparation of the litigation, but to my mind that does not justify an order in the present circumstances when the issue was not identified by them and would not have been to the stage when the trial has come to an end unless I had raised the matter with the parties.

4 Accordingly, I formally make no order in relation to any parties' costs of these proceedings.

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