Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: McEwan v Port Stephens Council (No. 2) [2022] NSWCATAD 308 Hearing dates: On the papers Date of orders: 20 September 2022 Decision date: 20 September 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: The applicant is to pay the respondent’s costs of the Miscellaneous Application as agreed or assessed.
Catchwords: ADMINISTRATIVE LAW – costs - special circumstances warranting the award of costs – exercise of discretion to costs
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Administrative Decisions Review Act 1997 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Cases Cited: 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29
AIN v Medical Council of New South Wales [2015] NSWCATAP 241
AX and AY v Wesley Dalmar [2008] NSWADT 231
Abdel-Messih v Wang (No 2) [2018] NSWCATAP 209
Ashby v Commonwealth (No 4) (2012) 209 FCR 65; (2012) 300 ALR 611; 229 IR 402; [2012] FCA 1411 at [4]
Asia Invest Enterprises Pty Ltd v Bircan (No 2) [2019] NSWCATAP 232
Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1987) 30 NSWLR 359 at 362.; (1992) 10 ACSR 537; 30 NSWLR 359
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [4]
Cairns Port Authority v Albietz [1995] 2 Qd R 470
Cleverley v Harness Racing New South Wales [2021] NSWCATAD 281
Cleverley v Harness Racing New South Wales (No 2) [2022] NSWCATAD 160
Council of the Law Society of NSW v DXW [2019] NSWCATOD 101
Cripps v G & M Dawson Pty Ltd [2006] ANZ Conv R 350; [2006] NSWCA 81
FAI General Insurance Co Ltd v Burns [1996] NSWSC 350
Hillebrand v Penrith Council [2000] NSWSC 1058
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43
Maule v Liporoni (No 2) [2002] NSWLEC 140
McEwan v Port Stephens Council [2017] NSWCATAD 269
Mendonca v Tonna [2017] NSWCATAP 176
O'Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559
Packer v Meagher [1984] 3 NSWLR 486; [1984] 3 NSWLR 486
Palmer v Gold Coast Publications Pty Ltd; Palmer v McCarthy [2013] QSC 352
Port Stephens Council v Webb [2021] NSWCATAD 180
Rose v Richards [2005] NSWSC 758
Rouse v Shepherd (No 2) (1994) 35 NSWLR 277; 35 NSWLR 277
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Ung v Golden Century Property Investments Pty Ltd [2018] NSWCATCD 56
Webb v Port Stephens Council [2020] NSWCATAP 152
Webb v Port Stephens Council [2019] NSWCATAD 47
Wentworth v Rogers No. 5 (1987) 6 NSWLR 534; 6 NSWLR 534
Texts Cited: N/A
Category: Principal judgment Parties: Paul McEwan – Applicant
Port Stephens Council - RespondentRepresentation: Solicitors:
T Webb (Agent) (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2016/00378193 Publication restriction: Nil
Judgment
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- Case
- [2022] NSWCATAD 308
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether special circumstances existed that would warrant an award of costs to the applicant. The court needed to consider the nature of the dispute, the conduct of the parties, and whether the applicant's application was frivolous or vexatious. The court also had to examine whether the applicant's application had a reasonable prospect of success and whether it had brought to the council's attention an arguable issue of law or fact.
In delivering the judgment, the court considered the applicant's application for costs and found that no special circumstances existed. The court found that the applicant's application was not frivolous or vexatious, but it did not have a reasonable prospect of success. The court concluded that the applicant had not brought to the council's attention an arguable issue of law or fact, and therefore, the application should not have been made. The court exercised its discretion and ordered that the applicant pay the respondent's costs of the Miscellaneous Application as agreed or assessed.
Orders
Orders of the court
The applicant is to pay the respondent’s costs of the Miscellaneous Application as agreed or assessed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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