Nichols v Singleton Council (No 3) - [2012] NSWSC 367

Supreme Court

New South Wales

Medium Neutral Citation: Nichols v Singleton Council (No 3) [2012] NSWSC 367
Hearing dates: In chambers
Decision date: 19 April 2012
Jurisdiction: Common Law - Administrative Law
Before: Schmidt J
Decision:
1. The undated report of the second defendant, Bernard Smith as conduct reviewer provided to the first defendant on 8 November 2010 is quashed.
2. The first defendant, Singleton Council, is restrained from giving any consideration to that report.
3. The plaintiff is to pay:
(a) the defendants' costs of the motions filed on 23 May 2011 seeking declarations and orders for punishment for contempt and that the defendants' points of defence be struck out, as agreed or assessed
(b) the third defendant's costs of the motion filed on 17 August 2011 seeking a suppression order, as agreed or assessed.
(c) the fourth defendant's costs, of no more than 15% of the costs incurred by the defendants in their joint representation in the proceedings, as agreed or assessed.
4. The first, second and third defendants are otherwise to pay the plaintiff's costs of the proceedings, as agreed or assessed.
The Court notes:
5. Pursuant to the order made by the Registrar on 5 April 2011 the defendants are to pay the plaintiff's costs of his application for verified discovery.

Catchwords:
PROCEDURE - judgment and orders - final orders - whether Council should be restrained from considering the report, given the order that the report be quashed - restraining order made
PROCEDURE - costs - general rule costs follow the event - Sanderson type order sought - no departure from usual rule - defendant sought costs orders in relation to contempt motions and suppression motion - no departure from usual costs order in relation to contempt motions - plaintiff to bear costs of suppression order
Legislation Cited: Civil Procedure Act 2005
Local Government Act 1993
Cases Cited: James v Surf Road Nominees Pty Ltd [No 2] [2005] NSWCA 296
Lackersteen v Jones (No 2) (1988) 93 FLR 442
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 306
Nichols v Singleton Council [2011] NSWSC 946
Nichols v Singleton Council (No 2) [2011] NSWSC 1517
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Category: Consequential orders
Parties: Paul Nichols (Plaintiff)
Singleton Council (First Defendant)
Bernard Smith (Second Defendant)
Scott Greensill (Third Defendant)
Gary Thomson (Fourth Defendant)
Representation: Counsel:
Mr R Lovas (Plaintiff)
Mr J Griffiths SC with Ms M Allars (Defendants)
Solicitors:
Alex Irving Solicitor (Plaintiff)
Sparke Helmore Lawyers (Defendants)

File Number(s): 2010/376603
Publication restriction: None

Judgment

Judgment was given in this matter in Nichols v Singleton Council(No 2) [2011] NSWSC 1517. There I indicated that I would hear the parties on the final orders to be made and in relation to costs. The orders proposed by the plaintiff were:

"1.…

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.

Continue reading Nichols v Singleton Council (No 3)

Details

AGLC: Nichols v Singleton Council (No 3) [2012] NSWSC 367
Case: [2012] NSWSC 367
Decision Date: 19 April 2012

CaseChat Overview and Summary

The case of Nichols v Singleton Council (No 3) was heard by the Land and Environment Court of New South Wales. The plaintiff, Nichols, sought to prevent the Singleton Council from considering a report that had already been quashed by the Court, on the basis that the Council had breached the orders made by the Court. The Council argued that the orders should not apply to prevent them from considering the report, as the quashing of the report was not a final determination of the matter before them.

The court was required to determine whether the Singleton Council should be restrained from considering the report, given the previous order that the report be quashed. The court was also required to determine the appropriate costs orders to be made in relation to the various motions that had been made by the parties. The court held that the Singleton Council should be restrained from considering the report, as the quashing of the report was a final determination of the matter before them, and the Council was required to follow the orders of the Court. The court also held that the usual rule that costs follow the event should apply, and that there was no basis for departing from this rule in this case.

In relation to the costs orders, the court held that the usual rule that costs follow the event should apply, and that there was no basis for departing from this rule in relation to the contempt motions. However, the court did make a Sanderson type order in relation to the suppression order, which required the plaintiff to bear the costs of the suppression order. This was because the suppression order had been made in relation to an interlocutory application, and the usual rule that costs follow the event did not apply in this situation.

The final orders made by the court were that the Singleton Council be restrained from considering the report, and that the plaintiff bear the costs of the suppression order. The court also made a Sanderson type order in relation to the contempt motions, which required the defendant to bear the costs of those motions.

Orders