Martin v Cootamundra Shire Council (No 2)

[2008] NSWLEC 274

Land and Environment Court

of New South Wales

CITATION:	Martin v Cootamundra Shire Council and Anor (No 2) [2008] NSWLEC 274
PARTIES:	APPLICANT Ormonde Robert Martin FIRST RESPONDENT Cootamundra Shire Council SECOND RESPONDENT John Meyer
FILE NUMBER(S):	40050 of 2008
CORAM:	Pain J
KEY ISSUES:	Costs :- exercise of discretion to award costs where multiple respondents in judicial review proceedings
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 r 42
CASES CITED:	Cutliffe and Anor v Lithgow Council and Ors (2006) 147 LGERA 330 Forsyth v Wilesmith (No 2) [2008] NSWLEC 260 Gee v Council of the City of Sydney and Ors [No 2] [2005] NSWLEC 144 Kindimindi Investments Pty Limited v Lane Cove Council (2006) 143 LGERA 268 Martin v Cootamundra Shire Council and Anor [2008] NSWLEC 220 Oshlack v Richmond River Council (1998) 193 CLR 72 Trowbridge and Anor v Ledbury and Ors [No 2] [1999] NSWLEC 119
DATES OF HEARING:	10 November 2008
EX TEMPORE JUDGMENT DATE:	10 November 2008
LEGAL REPRESENTATIVES:	APPLICANT No appearance FIRST REPONDENT Mr A Hudson SOLICITOR Wilshire Webb Staunton Beattie SECOND RESPONDENT Ms F Bergland SOLICITOR McIntosh McPhillamy & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

10 November 2008

40050 of 2008 Martin v Cootamundra Shire Council and Anor (No 2)

EX TEMPORE JUDGMENT

1 Her Honour: In Martin v Cootamundra Shire Council and Anor [2008] NSWLEC 220 I dismissed the Applicant’s Class 4 application seeking a declaration of invalidity of the Council’s decision to approve a modification of development consent DA 05/178 for the Second Respondent’s property. An order enforcing two conditions of the original consent was also sought. I did not have to consider the latter as I did not make the declaration sought. Judgment was delivered on 1 August 2008. A Notice of Ceasing to Act was filed by the Applicant’s solicitors on 19 September 2008. Both Respondents have now filed a Notice of Motion seeking an order that their costs be paid by the Applicant. He is not now legally represented.

2 The Applicant has not appeared today. He is aware of the hearing date having been provided with a letter notifying him of the date by the Council dated 8 October 2008 following the callover on that day when the hearing date was set. In a facsimile document sent to the Court on 7 October 2008 before the first callover in relation to these Notices of Motion on 8 October 2008 he provided submissions on issues in the substantive hearing and on costs. At my request the Council’s solicitor rang him today at his home in Cootamundra. He is aware the costs hearing is today and has not attended. There is no reason provided by the Applicant suggesting I should not proceed with this matter.

3 The Council filed a Notice of Motion dated 25 September 2008 supported by an affidavit of its solicitor, Mr Hudson, sworn 25 September 2008 which set out the steps undertaken in these proceedings. The Council argues that it has been successful in its arguments and under the Uniform Civil Procedure Rules 2005 (the UCPR) r 42 costs follow the event. There has been no disentitling conduct suggesting that the Council’s costs ought not be paid. The case was run efficiently by the solicitor representing the Council, there was no duplication of arguments as between the two Respondents, the Council’s evidence consisted of an agreed bundle of documents and the Applicant was not cross-examined. None of the Applicant’s written submissions referring to the Council’s costs application are relevant to the costs determination.

4 The Second Respondent filed a Notice of Motion dated 30 September 2008 supported by an affidavit of his solicitor, Mr Crennan, sworn 29 September 2008 which in large part adopted the affidavit of Mr Hudson. The Second Respondent similarly submitted that it was a necessary party having been joined in the proceedings and an order was sought which would have compelled him to act. There was no duplication of the Council’s arguments, rather submissions focussed on the exercise of the Court’s discretion. The matter was run efficiently so that there is no disentitling conduct. None of the Applicant’s written submissions referring to the Second Respondent’s costs application are relevant to the costs determination.

Finding

5 Rule 42.1 of the UCPR provides that costs follow the event unless the Court orders otherwise. The Council and the Second Respondent were successful in the substantive proceedings. The application was a challenge to the Council’s decision to modify a development consent and sought an enforcement order as against the Second Respondent so that both were proper parties. The submissions of the Applicant contained in the facsimile dated 7 October 2008 are directed to issues which could only have arisen in the context of the substantive proceedings which I have now determined. They are not relevant to this costs application.

6 The other issue to consider is whether both Respondents should get their costs. I considered this issue most recently in Forsyth v Wilesmith (No 2) [2008] NSWLEC 260. I noted at [5] that there is tension between the obiter remarks (made in 1998) of Gaudron and Gummow JJ in Oshlack v Richmond River Council (1998) 193 CLR 72 at [77]-[78] suggesting that local councils ought not contest judicial review proceedings because that would endanger their impartiality on subsequent applications and the common situation, continuing in 2008, that local councils do regularly contest judicial review proceedings in this Court.

7 It is highly desirable that costs be minimised and the number of active parties be kept to a minimum. The obiter comments of Gaudron and Gummow JJ in Oshlack have been referred to as relevant to consider in an application for costs in, for example, Kindimindi Investments Pty Limited v Lane Cove Council (2006) 143 LGERA 268 and Cutliffe and Anor v Lithgow Council and Ors (2006) 147 LGERA 330. Cases such as Trowbridge and Anor v Ledbury and Ors [No 2] [1999] NSWLEC 119, Gee v Council of the City of Sydney and Ors [No 2] [2005] NSWLEC 144, Kindimindi, Cutcliffe and Wilesmith No 2 concerning costs claimed by multiple respondents, inter alia, have considered cost duplication and inefficiency in the conduct of proceedings as some of the other factors the Court considers in determining whether more than one respondent ought receive their costs. In Gee at [16] I encouraged applicants in proceedings against multiple parties to write as early as feasible raising the issue of the need to limit costs where there are multiple respondents. In Wilesmith No 2 I held that the council ought not be awarded its costs because I considered there had been duplication of work and unnecessary work by the council in that case.

8 In this case having held in par 5 that the Respondents were proper parties I agree with the submissions of the Respondents that the case was run efficiently, the Respondents raised different and relevant issues in their respective arguments so that there was no duplication and there is no disentitling conduct. Both Respondents should be awarded their costs in my view. They have also been successful in their respective costs motions and should be awarded their costs of those motions.

Orders

9 The Court makes the following orders:

1. The Applicant is to pay the First Respondent’s costs of and incidental to the proceedings including the costs of the Notice of Motion, as agreed or assessed.
2. The Applicant is to pay the Second Respondent’s costs of and incidental to the proceedings including the costs of the Notice of Motion, as agreed or assessed.