McEwan v Port Stephens Council (No. 2) - [2022] NSWCATAD 308

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
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:
N/A

Category: Principal judgment
Parties: Paul McEwan – Applicant
Port Stephens Council - Respondent
Representation: Solicitors:
T Webb (Agent) (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2016/00378193
Publication restriction: Nil

Judgment

This…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCATAD 308
Decision Date: 20 September 2022

CaseChat Overview and Summary

The case of McEwan v Port Stephens Council (No. 2) involved the applicant, Mr. McEwan, who sought relief from the court against the respondent, Port Stephens Council. The applicant argued that the council had made a decision that was flawed and sought an order quashing that decision and for compensation. The court was tasked with determining whether the council's decision was legally sound and whether the applicant had grounds to seek costs from the respondent.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Texts Cited:	N/A
Category:	Principal judgment
Parties:	Paul McEwan – Applicant Port Stephens Council - Respondent
Representation:	Solicitors: T Webb (Agent) (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/00378193
Publication restriction:	Nil