Over Our Dead Body Society Inc. v Byron Shire Council

[2003] NSWLEC 60

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Land and Environment Court

of New South Wales

CITATION:

Over Our Dead Body Society Inc. v Byron Shire Council and Anor. [2003] NSWLEC 60

PARTIES:

APPLICANT:
Over Our Dead Body Society Inc.

RESPONDENT:
Byron Shire Council and Anor.

FILE NUMBER(S):

40242 of 2001

CORAM:

Bignold J

KEY ISSUES:

Costs :- class 4 proceedings discontinued without notice to or consent by Respondent.

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

22/03/2002

EX TEMPORE
JUDGMENT DATE :

03/22/2002

LEGAL REPRESENTATIVES:

APPLICANT:
N/A
SOLICITORS
N/A

FIRST RESPONDENT:
N/A

SECOND RESPONDENT
Mr J Webster, Barrister
SOLICITORS
Stone and Partners

JUDGMENT:

IN THE LAND AND

Matter No. 40242 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

22 March 2002

OVER OUR DEAD BODY SOCIETY INC.

Applicant

v

BYRON SHIRE COUNCIL

First Respondent

BYRON BAY COMMUNITY ASSOCIATION INC.

Second Respondent

JUDGMENT

1. By its Motion filed on 15 February this year the Second Respondent, the Byron Bay Community Association Incorporated, seeks an order that the Applicant pay its costs in the proceedings.

2. The proceedings were commenced on 24 December 2001 claiming declaratory and injunctive relief in relation to a foreshadowed payment by the Byron Council to the Second Respondent in the sum of $410,000 out of the Environmental Planning and Assessment Section 94 Fund held by the Council to assist in the construction costs (estimated at some $2.4 million) for the redevelopment of the Byron Bay Community Centre being undertaken by the Second Respondent.

3. Following the commencement of the proceedings an application for urgent injunctive relief was made on behalf of the Applicant. This occurred on 11 January 2002. The claim for interlocutory injunction was refused for reasons set forth in my judgment given on that day: see (2002) NSWLEC 6

4. Soon thereafter the Solicitors acting for the Applicant filed a notice of ceasing to act and the Second Respondent took action in the substantive proceedings including the filing of a Motion for security for costs which was returnable before me on 30 January 2002.

5. On that occasion, there was no appearance on behalf of the Applicant, although I think at that stage his former Solicitor had notified the Court that he no longer acted. However, a day or two earlier Mr Warwick Stocks, apparently the president of the Applicant, notified the Court’s Registrar by facsimile that the Applicant would be continuing with the class 4 proceedings on an unrepresented basis and sought an adjournment for two or three weeks.

6. It was in these circumstances that on 30 January, with no appearance on behalf of the Applicant (who at that stage had notified the Court that he was no longer represented by a solicitor but wished to continue with the case on an unrepresented basis) I acceded to the application of the Second Respondent to stand the matter over to the Registrar’s callover on 6 February to obtain an urgent hearing of the case including an urgent hearing of the security for costs Motion.

7. The Second Respondent was directed to notify the Applicant and the first Respondent, the Byron Council, of that callover.

8. On 4 February 2002, there was filed in Court a Notice of Discontinuance of the proceedings by the Applicant signed by Mr Stocks. Accordingly, the callover for 6 February 2002 (the following day) was not held.

9. The matter came before the Registrar on 25 March 2002 when the matter before the Court was the claim by the Second Respondent for an order for costs against the Applicant. The Registrar has fixed that matter before me today and gave instructions for the Applicant to be informed.

10. On 28 February 2002, by facsimile transmission and by confirming letter, the Second Respondent’s Solicitor notified the Applicant of the hearing date fixed for the notice of Motion claiming costs against the Applicant. The letter and facsimile transmission were sent to the address of Mr Stocks as notified in his facsimile to the Registrar of the Court. All that correspondence is Exhibit 1.

11. Today, the Applicant has not appeared and the Second Respondent has sought the order for costs on the basis of the Applicant’s discontinuance of the proceedings without the consent of the Second Respondent and, indeed, without any notice to the Second Respondent.

12. In the circumstances, where costs have obviously been incurred including the costs of the successfully resisted claim for interim injunction on 11 January 2002, the Applicant, by his unannounced and peremptory discontinuance of the proceedings shortly after he had informed the Court that it wished to pursue the claim to final relief in the class 4 proceedings, but without the benefit of legal representation, it is appropriate that the Second Respondent receive its order for costs.

13. Accordingly, I order the Applicant to pay the Second Respondent’s costs up to and including the filing of the discontinuance on 5 February 2002 and the costs of the hearing on the Motion today as well in the sum agreed or, failing agreement, as assessed.