North Sydney Council v O'Hara (Costs)
[2003] NSWLEC 280
•11/19/2003
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Land and Environment Court
of New South Wales
CITATION: North Sydney Council v O'Hara (Costs) [2003] NSWLEC 280 PARTIES: APPLICANT
RESPONDENT
North Sydney Council
Louise O'HaraFILE NUMBER(S): 40119 of 1999 CORAM: Talbot J KEY ISSUES: Costs :- whether disentitling conduct by successful party LEGISLATION CITED: Land and Environment Court Act 1979 s 69 CASES CITED: Director-General of the Department of Land and Water Conservation v Ramke [1999] NSWLEC 22, unreported;
Jzavellos v Canterbury City Council (1999) 105 LGERA 262;
Mantel v Anstee and Anor [2001] NSWLEC 202, unreported;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Scott v Gosford City Council [2001] NSWLEC 282, unreportedDATES OF HEARING: 22/04/2003 DATE OF JUDGMENT:
11/19/2003LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr D Parry (Barrister)
SOLICITORS
Mallesons Stephen Jaques
In Person
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
40119 of 1999
19 November 2003Talbot J
- Applicant
- Respondent
Introduction
1 Following a lengthy history of this matter dating back to 1996, which is detailed in earlier judgments, the applicant is now seeking an order set out in an amended notice of motion dated 20 November 2002 that the respondent pay the applicant’s costs of the proceedings, including costs of applications made and notices of motion filed in the proceedings.
Relevant Background
2 By way of summary it is useful to note that since 1999 in these class 4 proceedings the matter has been before the Court on 37 separate occasions, including callovers, Duty Judge hearings, List Judge hearings, hearings of various notices of motion and hearings in relation to the substantive issues. On 13 of these occasions orders were made in the respondent’s absence.
3 The respondent did not comply with original orders made by Assessor Bly (as he then was) on 30 September 1997 in class two proceedings. The orders made by Assessor Bly included an order requiring the respondent to replace broken and dislodged roof and slate tiles and to replace rusted, holed or missing gutters and downpipes at the premises owned by the respondent at 21 Willoughby Street, Kirribilli within a period of 18 months.
4 Cowdroy J made further orders in these class four proceedings on 29 November 1999. The orders made by Cowdroy J included an order to comply with the class two orders by 31 March 2000.
5 No final order as to costs was made in either instance. However, Cowdroy J made a specific order that any costs application “be stood over until the work the subject of these proceedings has been completed”.
6 A notice of motion seeking an extension of time for the carrying out of the work was dismissed on 31 March 2000. Again, no order as to costs was made. The question of costs was stood over to a separate hearing before Cowdroy J on 9 June 2000. However, the work had not been completed at this time and the costs hearing was vacated.
7 A period of just over one year passed before I made final orders in relation to the work, on 18 July 2001. During that period various motions were before the Court variously seeking orders to extend time for completion of the work, to stay the proceedings, to commission a structural engineer and to vacate hearing dates. Costs were reserved in respect of all of these applications.
8 When the final orders were made on 18 July 2001 the costs in relation to four notices of motion were reserved. However, the respondent was ordered to pay the reasonable costs and expenses incurred by the applicant in carrying out the work if Ms O’Hara did not comply with the final orders on or before 15 December 2001.
9 The final orders have now been complied with. The applicant subsequently filed a notice of motion on 20 June 2002 seeking an order that the respondent pay the applicant’s costs of the proceedings. This notice of motion was set down for hearing on 30 July 2002. The date was vacated on that day pursuant to the respondent’s notice of motion filed by facsimile on 29 July 2002. The respondent failed to appear on 30 July 2002. Further directions were made on that day in relation to the filing and service of affidavit evidence and written submissions for the purpose of the costs hearing.
10 The applicant amended its notice of motion on 20 November 2002 as set out in [1] above. The hearing set down for 16 December 2002 was adjourned at the request of Ms O’Hara. Further directions in relation to evidence and written submissions were made. On this occasion the Court ordered the respondent to pay the applicant’s costs as a consequence of the adjournment.
11 The directions made on 16 December 2002 were varied on two separate occasions as a result of the respondent moving the Court by way of notice of motion seeking an extension of time.
12 Both parties filed written submissions. The final hearing on the question of costs took place on 22 April 2003. Directions were made on that day requiring the council to produce to the respondent certain property files and exhibits. The respondent was directed to file and serve the balance of her submissions by 4:00pm on 30 April 2003. The applicant was given liberty to apply by 2 May 2003.
13 On 22 May 2003 a notice of motion by the respondent seeking an order to vary the direction made on 22 April 2003 and to “extend the time either to make a submission or to submit material” was dismissed. The applicant was given further liberty to apply on 2 days notice before 20 June 2003.
14 The respondent subsequently filed the balance of her submissions on 12 August 2003. The applicant filed submissions in reply on 19 September 2003. Thereafter, judgment was reserved. After judgment was reserved the respondent nevertheless continued to file documents and submissions purporting to be in support of her case. The applicant has been appraised of the situation and has advised the Court that no further review of the respondent’s material or submissions in respect thereof would be made.
- Applicant’s submissions
15 Mr Parry claims, on behalf of North Sydney Council (“the council”), that the council is entitled to a costs order as it has been wholly successful in the proceedings, including applications made following the determination of the proceedings, which were necessitated by the respondent’s continuing failure to comply with the final orders. Furthermore, he says, the two occasions where the respondent contends that she was successful related to two notices of motion, one of which sought a stay of proceedings and the other a vacation of the costs hearing date. Cowdroy J granted the latter application on 7 June 2002 and the former was dismissed.
16 Mr Parry submits that it is “unquestioned and unquestionable” that the council was entirely successful in obtaining the relief sought in these proceedings. Moreover, the council, he says, was successful in obtaining findings by the Court that the respondent had failed to comply with the original orders and subsequent orders requiring compliance.
17 The council reiterates that whilst the respondent was successful in certain applications they nevertheless amounted to seeking further indulgence from the Court to comply with outstanding orders and directions.
18 Mr Parry denies an assertion by the respondent that there has been disentitling conduct on the part of the council. Accordingly, he says, costs should follow the result and be awarded in favour of the council.
19 The principles for establishing disentitling conduct were set out by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 – 98 as follows:-
- The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd , Devlin J formulated the relevant principle as follows:
- "No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct."
- "Misconduct" in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.
20 In Mantel v Anstee and Anor [2001] NSWLEC 202, unreported Bignold J expressed a view that disentitling conduct refers to conduct in the litigation.
21 It is axiomatic that a successful party is entitled to its costs in the absence of any disentitling conduct.
22 The council submits that none of the allegations made by the respondent would relevantly fall within the five categories outlined by McHugh J above, or within the wider concept of “misconduct” relating to litigation. Moreover, Mr Parry asserts that the respondent invited the litigation by failing to comply with the original orders made by Assessor Bly. Her own actions or repeated failures to act have been the sole cause of the protracted proceedings.
23 The council further submits that whether the respondent has the means to pay an order for costs is not a relevant consideration in the exercise of discretion as to costs (see Scott v Gosford City Council [2001] NSWLEC 282, unreported).
Respondent’s submissions
24 Although the submissions made by Ms O’Hara are generally filed out of time, in the interests of justice the Court has nevertheless, in fairness to her, read the comprehensive and detailed written materials she has presented. The council’s solicitors have been informed from time to time that the material is available to them if required. If there is any matter raised by Ms O’Hara, which the Court considers to be one that raises an issue that should be addressed by the applicant, the council will be given a specific opportunity to respond.
25 The submissions can be generally summarised as being directed at what Ms O’Hara considers to be the disentitling, unreasonable and inappropriate conduct of the council, firstly, in the time leading up to when Assessor Bly delivered judgment on 30 September 1997 and, secondly, the time between that date and when the class four proceedings were commenced and subsequently.
26 Ms O’Hara contends that the council has not been wholly successful in a broad sense. She bases this contention on a number of matters which she says is disentitling conduct on the part of the council. Her complaints range from an allegation that the council consistently misled the Court that there was a safety issue in relation to the work required on her house, through inconsistency in its approach to the matters in dispute, to a failure to respect its obligations as a service organisation.
27 The Court does not question that these proceedings have had a significant adverse effect on Ms O’Hara in relation to her health and her employment, as well as general amenity in connection with the dwelling. Although the council consistently opposed applications for adjournments, deferment of obligations or other indulgences from time to time, the Court nevertheless accommodated Ms O’Hara in a number of respects in allowing her further time to present her case as fully as she believed she was entitled to do. It cannot be said, however, that the approach taken by the council was high or heavy handed as on each occasion the Court made an adjudication which either recognised that Ms O’Hara needed more time notwithstanding the legitimate objections by the council or that it was prudent to allow her the opportunity to overcome her difficulties in presenting the case so that the Court could be fully informed in respect of her concerns.
28 Much of the chagrin directed against the council by Ms O’Hara predates the determination made by Assessor Bly on 30 September 1997. Justices Bignold, Cowdroy and myself from time to time were called upon to make rulings in the class four proceedings, the underlying purpose of which was to enforce the order made by the council originally and confirmed by Assessor Bly on appeal. During the course of the class four proceedings no judge, including myself, has seen fit to remonstrate with the council for its action in pursuing the ultimate remedy. True it is that Ms O’Hara was granted a number of indulgences in order to afford her the opportunity to carry out the work by her own volition. Ultimately, this occurred of course but only after seven years of litigation. It does not sit well for Ms O’Hara to now say that if she had been left to her own devices the work would have been carried out in any event. The fact is that notwithstanding orders by the council and this Court she consistently failed to do so. There was more than adequate opportunity for her to put her case. Indeed it must be said that Ms O’Hara has been indulged to an extraordinary extent. However, this has not been as a consequence of the Court being persuaded that the course chosen by the council was unjustified or improper.
29 Ms O’Hara makes a number of unsubstantiated allegations against council officers and councillors, including the mayor. Even if proved, many of these allegations would not sound in a justification for the Court not to exercise its discretion in the customary manner by awarding costs in favour of the council as the successful litigant. In those cases where Ms O’Hara has been successful, either by obtaining an adjournment, a re-hearing or an extension of time to comply with directions the circumstances do not justify a finding against the council.
30 Anything that occurred during the course of the class two proceedings or in connection therewith is not a relevant consideration in relation to the question of a costs order in the class four proceedings.
31 Ms O’Hara seeks to make a case that one of the primary reasons that she was thwarted in her efforts to complete the works required was that the council “illegally” removed the tiles she proposed to use from where they had been stacked in a public place. The Court clearly took into account the fact of the removal of the tiles when allowing Ms O’Hara further time. However, no case has been made that the council acted illegally or that its actions were unjustified given that the tiles were perceived to be and were, self-evidently, an obstruction to public access along the footpath and caused difficulties for persons alighting from vehicles.
32 Notwithstanding the council’s contention that the Court should not take the material filed out of time by Ms O’Hara into account the Court has nevertheless perused it to determine whether leave should be granted for Ms O’Hara to re-open her case. The issues are summarised below.
Whether the council can be properly regarded as the successful party
33 The arguments put by the respondent in relation to whether the council can be properly regarded as the successful party are not predicated as the failure of the council to succeed but rather on the alleged lack of integrity and obfuscating, misleading, dishonest and unreasonable conduct perceived by Ms O’Hara. The assertion by Ms O’Hara is either not supported by admissible evidence or is not relevant to the success or otherwise of either party to the litigation.
Disentitlement
34 Many of the circumstances relied upon by the respondent to assert disentitling conduct relate to the period prior to Assessor Bly making orders. Other matters relating to adjournments and delays were invariably as a consequence of default by the respondent through no fault of the council. Ms O’Hara raises a litany of complaints regarding the reasonableness of making orders at all, whereas these issues have been settled by the litigation itself.
35 Ms O’Hara submits that the council has been inconsistent in its requirements, particularly as they relate to the re-tiling of her roof and also as they apply to other properties in the neighbourhood in similar circumstances. These arguments must be seen for what they are, namely an attempt to re-litigate the issues decided by the Court in the proceedings by re-agitating them at the costs hearing. The fact that the Court exercised its discretion to make orders in class two and class four proceedings reflects its satisfaction with the reasonableness of the council’s approach and the orders sought by the council.
36 The council, as the statutory authority responsible for the administration and supervision of development within its area, was fully entitled, indeed obliged, to ensure that any work required was carried out in accordance with sound engineering and building practice having regard to issues of compliance with statutory requirements and safety. Complaints by Ms O’Hara in relation to demand for certification by an engineer, inspections by council officers and approval for the work fail to recognise that the council not only had a duty to act fairly in her interests but also in the public interest.
37 On occasions the council officers and councillors elected not to deal with Ms O’Hara in respect of matters she raised in correspondence and personally by attendance at council offices and on the telephone but preferred to conduct any negotiation or discussions through their solicitors. The Court appreciates that the council is entitled to act in accordance with advice from its legal advisors, particularly while litigation is on foot between the council and a person with Ms O’Hara’s recalcitrant attitudes. These attitudes have been commented upon by the Court in earlier judgments and do not require repetition here except to say that the Court, based on its own experience, acknowledges that Ms O’Hara is a difficult and obstinate person who constantly obstructed an ultimate solution by prevaricating. These characteristics have, in the Court’s opinion, led to the problems that caused the proceedings to become convoluted and extended over what is basically a simple issue. That result should not be visited on the council as a cost burden.
38 Ms O’Hara alleges malice without a shred of corroborative evidence for her bold assertion.
39 Ms O’Hara alleges that the council took no account of her repeated illnesses by opposing adjournments when she asked for them. Not at any stage did Ms O’Hara provide evidence that could be tested but instead certificates were produced from time to time generally after the event and not in admissible form. In any event, she was subsequently given a fair opportunity to present her case.
40 Although there is no absolute rule with respect to the exercise of the judicial discretion conferred by s 69 of the Land and Environment Court Act 1979 that in the absence of disentitling conduct a successful party is to be compensated by the unsuccessful party, there must be special circumstances to justify the making of a special costs order. There is no relevant disentitling conduct or special circumstances in the present case.
Financial disadvantage
41 The financial position of an unsuccessful party is not a relevant consideration that the Court should take into account before making a costs order (Director-General of the Department of Land and Water Conservation v Ramke [1999] NSWLEC 22, unreported and Jzavellos v Canterbury City Council (1999) 105 LGERA 262).
Delays
42 Ms O’Hara submits that many delays or deferral of hearings was as a consequence of either the council not agreeing to an adjournment when she was otherwise engaged, ill or during a time when the council had allegedly confiscated her tiles thereby preventing her from proceeding with the work on the roof. Furthermore, it is alleged by Ms O’Hara that the council in effect sooled TV presenters and cameramen on to her whereby workmen left the site during the course of re-tiling the roof. The implication of the council in this process has not been proved. Questions about the underlying reasons for work being suspended, including whether the workmen were being paid, have been raised but nevertheless also remain unresolved to the Court’s satisfaction.
43 Such evidence as there is before the Court show that the council made efforts to assist Ms O’Hara with the stacking of her tiles but ultimately it decided to act by removing them from the public place where they had remained for a lengthy period with no real prospect of them being removed within a reasonable time otherwise.
44 The Court is not satisfied that any contribution by the council to the delay in finalisation of the proceedings was instrumental or catalytic. The facts remain that if Ms O’Hara had at some earlier time before or since 1996 knuckled down and arranged for the work to be done the proceedings would have been unnecessary.
45 At one time during the cause of the proceedings the council agreed to pay the fees of a structural engineer in an attempt to overcome the procrastination of Ms O’Hara by failing to provide proof that the roof, which was obviously in a depleted state, was structurally sound.
Discrimination
46 Complaints by Ms O’Hara that the council discriminated against her while other property owners in the vicinity with a roof in a similar condition have not been pursued is irrelevant and unsubstantiated, even though photographs and council files purporting to support the argument have been produced to the Court.
General
47 This is not a case where there were multiple issues fundamental to the outcome. There were numerous issues raised from time to time by Ms O’Hara generally in support of her contention that the hearing should not proceed on particular days. Technically, she might be able to claim success on those occasions when the hearing was postponed but the need for adjournments never arose as a consequence of the council’s default or neglect. However, even if Ms O’Hara is to be rightly regarded as successful on some point, the general approach taken by the Court in these situations is that it is ordinarily appropriate to award costs to the successful party without attempting to differentiate between particular issues, unless there is a predominant issue decided in favour of the unsuccessful party that justifies a special order. There is no particular issue or group of issues that is clearly separable that would cause the Court to make an order in favour of Ms O’Hara or to disallow the council’s costs.
48 The underlying primary and dominant cause of costs incurred arises out of Ms O’Hara’s persistent failure to comply with council and Court orders. In the absence of disentitling conduct by the council she must carry the consequences that flow from that fact.
- Irrelevant matters
49 Particular reference has already been made to a number of issues raised by Ms O’Hara that are clearly irrelevant to the question of costs. Ms O’Hara has, for example, placed significant emphasis on the impost on her amenity by the operation of an adjoining restaurant and nearby hotel. No account can be taken of these matters in the present case.
Leave
50 The Court does not propose to invite the council to make further submissions either in support of any proposal that Ms O’Hara be given leave to make submissions out of time or in further reply to the submissions made. Even if leave was granted the admission of the submissions and the material filed in support thereof will not make a case for the dismissal of the council’s notice of motion or the making of a special order.
Orders
51 The Court makes the following formal order:-
(1) That the respondent pay the costs of the applicant in respect of the proceedings, including interlocutory hearings and notices of motion.
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