Maxwell v Warringah Shire Council

Land and Environment Court

of New South Wales

CITATION:

Maxwell and Anor v Warringah Shire Council and Anor [2005] NSWLEC 90

PARTIES:

FIRST APPLICANT
S Maxwell

SECOND APPLICANT
M Corbett

FIRST RESPONDENT
Warringah Shire Council

SECOND RESPONDENT
Duffys Forest Residents Association
.

FILE NUMBER(S):

11195 of 2003

CORAM:

Moore C

KEY ISSUES:

Costs :-

CASES CITED:

Harb v Wyong Shire Council (No 2) [2004] NSWLEC 724;
Latoudis v Casey (1990) 170 CLR 534 ;
.

DATES OF HEARING:

4 March 2005

EX TEMPORE JUDGMENT DATE:

03/04/2005

LEGAL REPRESENTATIVES:

APPLICANTS
Mr J Cole, solicitor
Abbott Tout

FIRST RESPONDENT
Mr K Webber, solicitor
Wilshire Webb

SECOND RESPONDENT
-

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

4 March 2005

04/11195 Maxwell and anor v Warringah Shire Council and anor

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.


JUDGMENT

1 Commissioner: On 2 November 2004, I gave a decision concerning costs on a number of matters which had arisen these proceedings.

2 In order to give effect to that decision, a copy of the precise terms of the orders to which I had proposed to seek the Chief Judge’s concurrence was provided to the parties just prior to Christmas 2004. These were provided to give specific detail in amplification of my earlier decision and to enable the parties to make submissions to the Chief Judge.

3 In response to those proposed orders, the parties made submissions to the Chief Judge as part of the concurrence process pursuant to s 69(8) of the Land and Environment Court Act 1979 (the Court Act).

4 In the first instance, those submissions were also provided to me to read. Having done so, it seemed to me that the nature of those submissions significantly misconceived the role of the Chief Judge pursuant to s 69(8) of the Court Act.

5 His role essentially, as I understand it and has been applied consistently by him, is a “yes or no” role – which is necessarily implied from the terms of s 69(8) referring to his concurrence in the making of proposed orders.

6 His role does not constitute one, as I apprehend it, where the concurrence role can be used either as an informal substitution for an appeal pursuant s 56A of the Court Act if a party considers a commissioner's discretion has significantly miscarried nor does it provide an opportunity for the Chief Judge to alter or amend the orders proposed in proceedings.

7 As I wished to ensure that the matter proceeds expeditiously, on 4 February the matter was mentioned before me. During the course of this mention, I provided the parties with possible framework of orders which subsumed not only those orders which arose out of my decision of 2 November 2004 but also the earlier consent orders concerning costs which the applicants had agreed were appropriate to be met by them.

8 The new form of the orders which I provided…