Scheele v Cooma Monaro Shire Council

[2004] NSWLEC 768

Land and Environment Court

of New South Wales

CITATION:	Scheele v Cooma Monaro Shire Council [2004] NSWLEC 768
PARTIES:	Lawrence Dennis Scheele (Appl) Cooma Monaro Shire Council (Resp)
FILE NUMBER(S):	20457 of 2004
CORAM:	McClellan CJ
KEY ISSUES:	Costs :- Fair and reasonable costs The Council withdrew notices which had been made pursuant to s 18 of the Noxious Weeds Act 1993 without giving reasons Costs awarded to applicant
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	7 December 2004
EX TEMPORE JUDGMENT DATE :	12/07/2004
LEGAL REPRESENTATIVES:	Lawrence Scheele (Appl in person) J Last (Sol - Resp) Last and Maxwell (Sol - Resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

TUESDAY 7 DECEMBER 2004

20457/04 SCHEELE v COOMA-MONARO SHIRE COUNCIL

JUDGMENT

1 HIS HONOUR: This matter comes before me in relation to the application by Mr Scheele for an order for costs. The application is made in the circumstances where the Council issued a number of notices pursuant to s 18 of the Noxious Weeds Act 1993 in relation to properties owned by Mr Scheele.

2 Mr Scheele lodged appeals to this Court which required him to pay the appropriate application fees and to incur a number of other out-of-pocket expenses in prosecuting the appeals. However, before the appeals were fixed for hearing the Council resolved to withdraw the notices. There is no evidence before me as to the reasons why the Council withdrew the notices, and I am accordingly unable to make this decision with any knowledge of the Council’s motivation.

3 Following the withdrawal of the notices and apparently after advice from the registrar, Mr Scheele discontinued the appeals. It was plain that this was an appropriate action because once the notices were withdrawn, there was no further matter of dispute between the parties.

4 Mr Scheele says that in the circumstances where the notices have been withdrawn after he has been put to the expense of bringing appeals to this Court, he should be compensated with an order for costs. His application sought to recover not only out-of-pocket expenses but also fees in relation to his professional time. However, after the question of capacity to recover for the latter items was discussed with him he has confined his application to a limited number of out-of-pocket expenses.

5 The Council submits that in the circumstances it would not be fair and reasonable that an order for costs be made. It emphasises the fact that Mr Scheele withdrew the appeals, and the Council could have, at that stage, applied for costs itself. Furthermore, the solicitor for the Council emphasises the fact that the ultimate proceedings have never been prosecuted and accordingly, whether or not the original notices were justified, has not been determined by the Court.

6 I am satisfied that it is appropriate for an order for costs to be made. The rules of the Court have recently been amended and an order for costs can now be made in proceedings of this nature where the Court is satisfied that it is fair and reasonable to do so. The former rule imposed a more rigorous test, an order for costs only being available in exceptional circumstances. I am satisfied that an order is fair and reasonable in the present case having regard to the fact that the Council having issued the notices subsequently withdrew them, and the Court has been given no explanation as to the reason why that withdrawal was made. So far as the Court is aware, the Council has decided that it would not pursue the notices and accordingly, in those circumstances, Mr Scheele has been put to expense which he would not have incurred if the notices had either not be issued or had been withdrawn prior to the commencement of the proceedings.

7 However, the order for costs which is appropriate should be confined to the Court application fee, the costs of acquiring Court tapes, and monies spent on the actual costs of telephone calls. Those matters, drawn from the schedule of costs attached to Mr Scheele’s affidavit amount to the sum of $718.24. Accordingly, rounding that figure, I make an order in this matter that the Council pay the applicant, Mr Scheele’s, costs in the sum of $718.

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