Parkes v Byron Shire Council (No 2)

[2004] NSWLEC 550

Land and Environment Court

of New South Wales

CITATION:

Parkes v Byron Shire Council and Anor (No 2) [2004] NSWLEC 550

PARTIES:

APPLICANT
John Parkes

FIRST RESPONDENT
Byron Shire Council

SECOND RESPONDENT
Minister for Planning

FILE NUMBER(S):

10897 of 2001

CORAM:

Cowdroy J

KEY ISSUES:

Costs :- notice of motion - moving party withdrawing motion - costs

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

25/02/2004

EX TEMPORE
JUDGMENT DATE :

02/25/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Dawson (Barrister)

SOLICITORS
Beesley & Hughes

FIRST RESPONDENT
Mr I. Hemmings (Barrister)

SOLICITORS
Abbott Tout

SECOND RESPONDENT
Ms J. Jagot (Barrister)

SOLICITORS
Department of Infrastructure, Planning and Natural Resources

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

COWDROY J

25 February 2004

10897 of 2001

PARKES
Applicant

BYRON SHIRE COUNCIL
First Respondent

THE MINISTER FOR PLANNING
Second Respondent

Judgment (No 2)

1 The applicant has withdrawn its motion dated 19 February 2004 and the respondents seek the costs of that motion. They say that the motion raised a discrete matter and that it was not until today that they were notified that the motion would not be proceeding.

2 The Court has heard of the nature of the proceedings which appear to have a long history in this Court. The issues, are not known to the Court at this stage. However, it is apparent that the way the proceedings have been conducted is somewhat unusual. The applicant seeks leave to file and serve by 4pm today evidence on which he seeks to rely. The reason for the late service of that evidence is not entirely satisfactory nor clear, but it appears that the applicant thought he had disposed of the subject property by way of sale.

3 The Court finds that it is quite impossible to know at this stage the merits of the matter sufficiently in order to make a determination as to the question of costs of this motion. However, prima facie, it appears that the motion was instituted and withdrawn only on the day of the hearing, and that that circumstance of itself ought to entitle the respondents to costs, even costs on an indemnity basis. However at this stage, because the Court does not know sufficient of the background, it will make no order for costs. The Court is mindful that the first respondent proposes to seek an order for costs if it is successful of the whole of the class one proceedings. It would be appropriate for the application for costs of this motion to be heard with that application for costs.

4 The applicant’s application for leave to file and serve evidence by 4pm today has not been strenuously opposed. Accordingly, the Court will make that order.

5 Additionally, the first respondent seeks leave to raise a point of law which if successful would appear to dispose of the whole of the proceedings. Mr Dawson who appears for the applicant has opposed that course on the basis that at this stage nothing is known of the issue and it may raise factual matters. However, the Court is satisfied that that matter should be ventilated forthwith to enable the parties to organise themselves so they can deal with that question on the third, fourth, and fifth of March. There is still sufficient time for that matter to be fully considered and evidence provided in response.

6 Accordingly, the Court makes the following orders:

1. The cost of the matters of motion dated 19 February 2004 are reserved;
2. The applicant be granted leave to file and serve evidence upon which he seeks to rely by 4pm today;
3. The first respondent be at liberty to raise a further issue provided that issue is notified by no later than 4pm today to the applicant and to the second respondent;
4. Any further evidence from either the first respondent or the second respondent to be filed on or before 4pm on 27 February.