Megna v Drummoyne Municipal Council

[1988] NSWLEC 121

Land and Environment Court

of New South Wales

CITATION:	Megna v Drummoyne Municipal Council [1988] NSWLEC 121
PARTIES:	APPLICANT Megna RESPONDENT Drummoyne Municipal Council
FILE NUMBER(S):	10113 of 1988
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Government Act 1919 Land and Environment Court Act 1979 Supreme Court Act 1970
CASES CITED:	London Scottish Benefit Society v. Chorley, Crawford and Chester (1884) ; Guss v. Veenhuizen (No. 2) (1976); Buckland v. Watts (1969); Beywood v. Wellers (1976) ; Lysnar v. National Bank of New Zealand Limited (1935); O'Toole v. Scott (1965); Hubbard Association of Scientologists International v. Anderson (1972) ; Abse v. Smith (1986)
DATES OF HEARING:	05/05/1988
DATE OF JUDGMENT:	05/26/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

JUDGMENT ON COSTS

Bignold J.: This is an application by the Respondent for costs thrown away as a result of an adjournment being granted to the Applicant on the day that class 1 proceedings were fixed for hearing.

The Respondent's application comes before me as a result of the Court's Practice Direction No. 12 which is in the following terms:-

"12. The practice of the Court is that no order for costs is made in Planning and Building Appeals unless the circumstances are exceptional.

As from this date (ie 16th November, 1987) a direction made by the Chief Judge that proceedings be heard by one or more assessors shall be interpreted as being a direction to hear the whole of the matter other than any question of costs.

Any application for costs should be made by notice of motion within 14 days of publication of the judgment."

The essential facts are not in dispute and may be briefly stated.

On 8th March, 1988 the Applicant filed in this Court an appeal pursuant to s.97 of the Environmental Planning and Assessment Act 1979 against the Respondent's decision to grant development consent subject to specified conditions to the Applicant's application for additions and alterations to an existing dwelling-house. (It appears that the dispute between the parties concerns the side boundary set-back requirements of Ordinance 70 under the Local Government Act 1919)

The application (by way of appeal) came before the Registrar on 13th April, 1988 when the Applicant appeared in person and the Respondent was represented by Mr. Bailey, its Senior Building Surveyor who is not a legal practitioner. On that occasion the Registrar specially fixed the hearing of the appeal for 5th May, 1988, the Applicant asking for an urgent hearing and Mr. Bailey agreeing with that request.

Thereafter Mr. Bailey undertook his preparation for the hearing. However at 3p.m. on the day before the hearing date he was advised that the Applicant would be seeking an adjournment of the case. Mr. Bailey indicated that he was ready to proceed and would not agree to the adjournment. (Two days earlier he had received a telephone call from a Solicitor who indicated that the Applicant might be obtaining legal and other professional assistance in his case).

On the date fixed for the hearing the Applicant appeared in person before the Senior Assessor (who was appointed to hear the case) and Mr. Bailey appeared for the Respondent. The Applicant applied for an adjournment. Mr. Bailey (who was ready to proceed with his witness in attendance) opposed the application. After hearing argument the Senior Assessor granted the adjournment to the Applicant and went on to draw to Mr. Bailey's attention the Court procedures available to him to apply for costs.

I think it a legitimate and indeed irresistible inference that had the power to award costs been available to the Senior Assessor he would have granted the application on terms that the Applicant pay the costs thrown away by the adjournment. (This is a normal procedure where adjournments are granted in the face of opposition (based on reasonable grounds) from the opposing party).

However in terms of the Court's Practice Direction the question of costs is to be determined by me. Putting aside for the moment the Applicant's principal submission that a litigant in person cannot benefit from an award for costs I think in the circumstances of this case the Respondent is clearly entitled to the usual order for costs thrown away by granting a belated (and reasonably opposed) application for adjournment of the hearing.

In this respect I do not think the fact that the Applicant had given notice to the Respondent on the afternoon before the hearing date of his intention to seek an adjournment entitles the Applicant to avoid responsibility for the costs thrown away by the adjournment. The Respondent was acting reasonably in opposing the adjournment application. The hearing date had been fixed some 3 weeks earlier (having been listed for an early hearing at the request of the Applicant) and Mr. Bailey had prepared his case for the specially fixed hearing date. He was entitled to come to Court with his case ready to proceed (including having his witness, a neighbouring objector, in attendance). It appears that Mr. Bailey would have undertaken the dual role of presenting the Respondent's case as its agent and of giving evidence as its principal witness. This is not an uncommon practice adopted by several local Councils in the hearing of relatively simple class 1 and 2 proceedings in this Court, despite the obvious difficulties in

herent in such a practice. In these circumstances the Respondent has demonstrated its entitlement to an order for costs thrown away by the adjournment granted to the Applicant.

This conclusion leads to a consideration of the question of what precise elements are involved in such an order in the situation (such as the present case) where the Respondent is not legally represented. In this respect Counsel for the Applicant referring to the decision of London Scottish Benefit Society v. Chorley, Crawford and Chester (1884) 13 QBD 872 applied by the High Court of Australia in Guss v. Veenhuizen (No. 2) (1976) 136 CLR 47 submitted that the Respondent was entitled to no costs (except apparently for out of pocket expenses).

Both cases cited by the Applicant involved a party in whose favour a costs order had been made who was a solicitor. The present is not such a case.

Nonetheless Chorley's case involves helpful statements of principle concerning the position of a successful litigant who appears in person, which principles have been applied in later cases. In Chorley Brett M.R. at p.875 deals with the question as follows:-

"When an ordinary party to a suit appears for himself, he is not indemnified for loss of time; but when he appears by solicitor, he is entitled to recover for the time expended by the solicitor in the conduct of the suit. When an ordinary litigant appears in person, he is paid only for costs out of pocket. He cannot himself take every step, and very often employs a solicitor to assist him: the remuneration to the solicitor is money paid out of pocket. He has to pay the fees of the court, that is money paid out of pocket; but for loss of time the law will not indemnify him."

In the same case Bowen LJ traces the history in England of costs orders in litigation. After citing a passage from Coke's Commentaries he continues at p.877:-

"His meaning seems to be that only legal costs which the Court can measure are to be allowed, and that such legal costs are to be treated as expenses necessarily arising from the litigation and necessarily caused by the course which it takes. Professional skill and labour are recognised and can be measured by the law; private expenditure of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the nervousness of the individual. Professional skill, when it is bestowed, is accordingly allowed for in taxing a bill of costs."

In Veenhuizen (No. 2) the majority judgment at p.51 explained Chorley as establishing the principle that "the litigant in person does not recover costs ....... in the capacity of a solicitor, but because, he happening to be a solicitor, his costs are able to be quantified by the Court and its officers".

Cases more directly in point to the matter raised in the present proceedings include Buckland v. Watts (1969) 2 AllER 985; Heywood v. Wellers (1976) 1 AllER 300 (being decisions of the English Court of Appeal) and Lysnar v. National Bank of New Zealand Limited (1935) NZLR 557 and Re G.J. Mannix Ltd. (1984) 1 NZLR 309 (being decisions of the New Zealand Court of Appeal).

In Buckland v. Watts Danckwerts LJ stated at pp.985/6 what he regarded as the well-settled principle:-

"......... that although a solicitor who acts in person for himself can claim to be remunerated for his professional services so far as they are not rendered unnecessary or impossible - as, for instance, in regard to consultations with himself, and that sort of thing - such costs are recoverable by the solicitor, but in the case of a layman who is not a skilled legal person, he can only recover his out-of-pockets."

At p.987 after citing Bowen LJ's judgment in Chorley His Lordship states:-

"....... but it appears quite clear from the words used by Bowen LJ that in the case of a layman he could not charge for his time, and that seems to me to cover the issue in the present case in regard to the disallowance of his claims for time and labour tendered by the plaintiff."

In Heywood v. Wellers Lord Denning MR followed Buckland v. Watts in holding that a costs order in favour of the successful litigant in person only entitled her to out of pocket expenses.

As Lord Denning pointed out in Heywood v. Wetters the position of successful litigants in person in England has been changed by the enactment of the Litigants in Person (Costs and Expenses) Act 1975. In consequence of that enactment R.S.C. Order 62 r28A allows costs to a litigant in person up to 2/3rds of the sum that would have been allowed for had the work been done by a Solicitor.

However no counterpart law applies in N.S.W. or in particular to the powers of this Court.

Subject to my consideration of the effect, if any, of s.63 of the Land and Environment Court Act 1979 it follows from these cases that as the law currently stands a successful litigant in person is not entitled to professional costs for the time and labour in preparing and presenting the case. I equate to the position of a litigant in person a litigant who appears by an agent who is not a legal practitioner.

Although the matter was not addressed in argument I have given some consideration to the question whether other provisions of the Land and Environment Court Act 1979 combine with s.69 to justify a wider interpretation of the broad costs power thereby conferred such as to support an award for costs along the lines of for example RSC Order 62 r28A.

Section 63 (which is concerned with the right of appearance) provides:-

"A person entitled to appear before the Court may appear in person, or by a barrister or solicitor, or (except in proceedings in Class 5 of the Court's jurisdiction) by an agent authorised by the person in writing."

Section 38(1) of the Act provides:-

"Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit."

Although s.63 confers a right of appearance in far more liberal terms than for example the right of appearance applicable to the Supreme Court, doubtless in recognition of the practice of litigants (including Local Councils) to be represented before the Court especially in Class 1 or 2 proceedings by appearing in person or by agents who are not legal practitioners I do not think it operates so as to extend, by necessary implication, the costs power conferred by s.69 of the Land and Environment Court Act so as to allow for example professional legal costs (or a proportion thereof) for work done by representatives who are not legally qualified.

The text of the Court's statutory power to award costs is not materially different from the costs power conferred by s.76 of the Supreme Court Act 1970. The latter costs power would not, conformably to the decisions I have earlier cited, extend to allowing professional legal costs to a litigant in person or to an agent, not legally qualified, of a litigant.

I do not think the context provided by the Land and Environment Court Act and in particular by the two sections I have cited (ie ss.38(1) and 63) justifies an interpretation providing a more liberal scope of the costs power conferred by s.69 of the Land and Environment Court Act. In expressing this view I think that it is important to bear in mind that though the liberal right of appearance by an agent (not being a barrister or solicitor) conferred by s.63 of the Land and Environment Court Act is not generally recognised or conferred by other courts these courts retain the discretion derived from their inherent power to regulate their own practices and procedures to allow themselves to be addressed in a proper case by any person they consider a proper person to be allowed an audience - see O'Toole v. Scott (1965) AC 939, Hubbard Association of Scientologists International v. Anderson (1972) VR 340, Abse v. Smith (1986) 1 QB 536.

Accordingly I am satisfied that an order for costs thrown away by the adjournment is justified in the present case and should be made. For the benefit of the taxing officer I will define more precisely the content of the order, namely all out of pocket expenses incurred by the Respondent including witness expenses and the out of pocket expenses incurred in Mr. Bailey attending the Court to present the Respondent's case, thrown away by the adjournment.

Additionally I order the Applicant to pay the Respondent's costs of the current motion being the out of pocket expenses of Mr. Bailey attending Court to present the Respondent's case. I take this course on the basis that the Applicant has failed in its opposition of a costs order being made in favour of the Respondent. Although the Applicant has correctly drawn attention to the established principles that litigants in person cannot receive the benefit of an order for professional costs it has failed to make good its submission that there should be no order for costs in favour of the Respondent.

Accordingly I order the Applicant to pay the Respondent's costs as follows:-

(i) costs (being out of pocket expenses incurred by the Respondent including witness expenses and out of pocket expenses of Mr. Bailey, the Respondent's Senior Health and Building Surveyor) thrown away by the adjournment of the hearing granted on 5th May, 1988; and

(ii) costs (being out of pocket expenses incurred by Mr. Bailey's attendance at Court) of the Respondent's application for costs.