Pikoulas v Canterbury City Council (No.4)

[2008] NSWLEC 166

Land and Environment Court

of New South Wales

CITATION:

Pikoulas v Canterbury City Council (No.4) [2008] NSWLEC 166

PARTIES:

APPLICANT
Aristomenis Pikoulas
RESPONDENT
Canterbury City Council

FILE NUMBER(S):

10619 of 2007

CORAM:

Sheahan J

KEY ISSUES:

Costs :- whether it is fair and reasonable to make a costs order

LEGISLATION CITED:

Land and Environment Court Act 1979

CASES CITED:

Aldi Foods Pty Ltd v Holroyd City Council (2005) 142 LGERA 141
Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103
Grant v Kiama Municipal Council [2006] NSWLEC 70
Halstead & Anor v Wingecarribee Shire Council [2007] NSWLEC 346
Holroyd City Council v Kubacki & Anor [2007] NSWLEC 804
Kogarah Council v McNicol [2001] NSWLEC 11
Pikoulas v Canterbury City Council [2007] NSWLEC 648
Pikoulas v Canterbury City Council [2007] NSWLEC 747
Pikoulas v Canterbury City Council [2008] NSWLEC 77
Port Stephens Council v Sansom (2007) 156 LGERA 125
Radray Constructions Pty Limited v Hornsby Shire Council [2007] NSWLEC 132
Thaina Town (On Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150
The Warehouse Pty Ltd & Anor v City of Sydney Council [2007] NSWLEC 488

DATES OF HEARING:

6 May 2008

EX TEMPORE JUDGMENT DATE:

6 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
In Person

RESPONDENT
Mr D Baird, Solicitor of
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

6 May 2008

10619 of 2007 Pikoulas v Canterbury City Council (No.4)

EXTEMPORE JUDGMENT

1 His Honour: The Court is dealing today with a Notice of Motion lodged by Mr Pikoulas on 26 February 2008 seeking “costs and … financial damages” against the Council following three hearings in Class 1 of the Court’s jurisdiction concerning a modification application pertaining to his property at 17 Crinan Street Hurlstone Park.

2 The property, the development consent and the modification application are detailed more than adequately in the relevant judgments of Bly C on Mr Pikoulas’s appeal on 13 September 2007 ([2007] NSWLEC 648), of Preston CJ in a s.56A appeal decided 9 November 2007 ([2007] NSWLEC 747), and of Moore C on a rehearing of the appeal on 1 February 2008 ([2008] NSWLEC 77), and those details need not be repeated here.

3 Commissioner Moore ultimately upheld Mr Pikoulas’s appeal, and deleted part of a contentious condition of Development Consent 8256/96C, but not the part Mr Pikoulas sought to have deleted.

4 Mr Pikoulas and the Court have had the benefit of the assistance of an interpreter, but Mr Pikoulas did not have legal representation. I note, however, that he informed the Registrar on 13 March and 3 April 2008 that he was obtaining counsel’s advice on his Notice of Motion.

5 He explained his position and his claims clearly and in substantial detail, and filed and tendered voluminous material in support of his case.

6 In essence, he feels deeply aggrieved by the entire history of his dealings with the Council, and a series of its senior officers (Messrs. Sidney, Montague, Rigon, Hargreaves), dating back at least to a building application in February 1978 (Exhibit A), and has particularised costs and expenses incurred in a sum of at least $55,888, not to mention ongoing lost income, in the period since 27 November 1995. The Court has also been addressed on his difficulties with a printing factory next door at 19 Crinan Street, with which Mr Pikoulas’s property shares a common wall, at least since 1984.

7 Many of these complaints have been pursued with the Council itself at its highest levels, with Minister for either the Environment or Local Government (see annexures 1-6 and 1-7 to his affidavit of 21 April 2008), and with the Director General of Local Government (annexure 1-23). In addition, Mr Pikoulas said in his oral submission that he has taken up some issues with the Attorney General. Running through all his submissions was the theme of what he called the Council’s “carelessness”, but he also used the terms “corruption”, “negligence”, “discrimination”, “vexatious”, “makes its own law”, and “suspicious” at various stages.

8 All of these difficulties have amounted, he says, to a “financial catastrophe”, especially given he is a pensioner of modest means, concerned only to make the best of his own property for the benefit of his family, especially his daughter.

9 In these present proceedings, however, Mr Pikoulas has three particular difficulties:

(i) He needs to establish, in order to win an order for costs in a planning appeal like this, that such an order is “fair and reasonable ” and/or “ just and equitable ” in all the circumstances. The test is fully explained in Grant v Kiama Municipal Council [2006] NSWLEC 70 (“ Grant ”), and is regularly and faithfully applied by all the judges in this Court. See, e.g. my judgment in Holroyd City Council v Kubacki & Anor [2007] NSWLEC 804; Lloyd J’s judgment in The Warehouse Pty Ltd & Anor v City of Sydney Council [2007] NSWLEC 488; Pain J’s judgment in Radray Constructions Pty Limited v Hornsby Shire Council [2007] NSWLEC 132; Jagot J’s judgment in Halstead & Anor v Wingecarribee Shire Council [2007] NSWLEC 346, and Biscoe J’s judgment in Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103. The Court of Appeal has endorsed those principles in Port Stephens Council v Sansom (2007) 156 LGERA 125, and in Thaina Town (On Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150, and has made clear that they are to be applied without any presumption one way or the other. See also Talbot J’s comments in Aldi Foods Pty Ltd v Holroyd City Council (2005) 142 LGERA 141. I can find in the history of this case none of the circumstances which might lead to an order in favour of the applicant.

(ii) Secondly, Mr Pikoulas has consistently represented himself, and so has incurred none of the professional costs usually involved in proceedings of this type, albeit that, as I have noted, he may have obtained some advice away from the courthouse. The authorities, some dating back to 1884, have clearly established that a self-represented litigant (often referred to as a litigant in person) cannot recover “ costs [of a professional nature] for work done relating to the litigation nor for loss of time ”, but may recover out of pocket expenses incurred relevant to the litigation. See Cowdroy J in Kogarah Council v McNicol [2001] NSWLEC 11 at [20] and the cases there cited by His Honour. An order for such out of pocket expenses would be made by this court only where the Applicant establishes an entitlement to an order under the principles in Grant .

(iii) Thirdly, while what Mr Pikoulas has particularised may be “ out of pocket expenses ”, and/or in another context “ special damages ”, they are, as he himself describes them, “financial damages ”, and this Court has no jurisdiction, certainly in Class 1 proceedings, to award “ damages ” of any type – see s.17 of the Land & Environment Court Act 1979, especially par (d). It would be in Mr Pikoulas’s interests to seek some professional advice on remedies possibly available to him elsewhere.

10 In summary, therefore, the Court has determined that Mr Pikoulas has not established any entitlement to an order in the nature of a costs order, nor any power for the Court to make an order in the nature of a verdict in his favour for compensation or damages.

11 Accordingly, his Notice of Motion must be dismissed.

12 The Respondent Council has asked for an order for costs in its favour on the Notice of Motion. Given the nature and history of the proceedings and the fact that the substantive appeal had to be heard twice, the Applicant was entitled to bring the Notice of Motion to argue for his costs. For the reasons I have given, that Notice of Motion is dismissed, but in my discretion, I think the most appropriate decision is to order that each party pay its own costs on the Notice of Motion.

13 Exhibit A may be returned to Mr Pikoulas.