Scott v Gosford City Council
[2001] NSWLEC 282
•11/20/2001
Land and Environment Court
of New South Wales
CITATION: Scott v Gosford City Council [2001] NSWLEC 282 PARTIES: APPLICANT
RESPONDENT
Scott
Gosford City CouncilFILE NUMBER(S): 40054 of 2000 CORAM: Pearlman J KEY ISSUES: Costs :- class 4 proceedings - discontinuance - previous application to strike out - warnings about costs - means of party subject to costs order LEGISLATION CITED: CASES CITED: Duncan v Moore and Ors (2000) 107 LGERA 430;
Gribbles Pathology Pty Ltd v Health Insurance Commission and Ors (1997) 80 FCR 284;
Re The Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622DATES OF HEARING: 20/11/2001 EX TEMPORE
JUDGMENT DATE :
11/20/2001LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr R Whitlock (Agent)
SOLICITORS
N/A
Mr M Fraser (Barrister)
SOLICITORS
P J Donnellan & Co
JUDGMENT:
IN THE LAND AND 40054 of 2000
ENVIRONMENT COURT
Pearlman J
OF NEW SOUTH WALES 20 November 2001
- Applicant
Respondent
1. The sole matter before the court this morning is the council’s application for costs in class 4 proceedings which have been discontinued by the applicant.
2. It is appropriate to outline a little about these proceedings as a basis for determining whether costs should be awarded or not. The proceedings were commenced by a class 4 application filed in the Court on 28 March 2000. In essence, the applicant claimed orders from the Court restraining the council from prosecuting the applicant in relation to her activities. Those activities concerned her business of selling seafood in a public place.
3. The council then applied to the Court to strike out the class 4 application on the basis that the application was patently hopeless, was frivolous, and was liable to summary dismissal. In particular the council claimed that this Court had no jurisdiction to entertain an application seeking the orders which the applicant sought.
4. The proceedings were listed for hearing before me on 7 August 2000. I expressed a view, in quite strong terms, that the applicant’s claim was untenable. However, rather than striking out the proceedings, I adjourned them in order to allow the applicant to ventilate her claims concerning her activities in the Gosford City Council area by means of an appeal to this court from the refusal of her development application.
5. Ultimately the applicant did appeal. The class 2 appeal and the class 4 application were listed for hearing before Lloyd J on 25 June 2001. Both the class 2 appeal and the class 4 application were discontinued. No order for costs was made in the class 2 appeal. Lloyd J noted that the class 4 proceedings were discontinued and he reserved costs.
6. I particularly note correspondence that was sent by the council to the applicant on 4 April 2000, and on 8 August 2000 following the hearing before me. In its letter of 4 April 2000, the council invited the applicant to discontinue the proceedings. It made that invitation on the basis that the council would consent to discontinuance with each party bearing its own costs. On 8 August 2000 the council wrote a long letter to the applicant setting out the legal position in which she found herself, giving her some understanding of the council’s position, and inviting her to seek legal advice about discontinuing the class 4 proceedings upon agreement to pay the council’s costs. I mention those two letters in particular because they indicate a concern on the part of the council that there would ultimately be a costs order. The council was giving the applicant an opportunity to take that into account in the further dealings between them.
7. Mr Fraser, appearing for the council, has submitted that the Court has a wide discretion as to costs, and that that discretion must be exercised judicially taking into account the facts and circumstances of the case.
8. In this case there had been no hearing on the merits because the proceedings were discontinued. The approach that the Court should take in relation to such a circumstance was explained by McHugh J in Re The Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 at 625 as follows:
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion would usually mean that the court will make no order as to the cost of the proceedings.
9. However, in this case there is a special circumstance, and that is the fact that the claim by the applicant in the class 4 proceedings was patently hopeless and untenable. As I have said, the Court expressed that opinion to the applicant when the strike-out motion was dealt with.
10. In Gribbles Pathology Pty Ltd v Health Insurance Commission and Ors (1997) 80 FCR 284 at 287. Finkelstein J said:
[I]f a claim is patently hopeless that would be a good reason to make an order for costs against the claimant.
11. I am of the view that there is no disentitling conduct on the part of the council. Once it had formed the view that the applicant’s case was futile, untenable and hopeless, it brought a motion to strike out the proceedings. That was correct in the circumstances, and it led to the Court endeavouring to assist the applicant in having her concerns ventilated.
12. I am not unsympathetic to Ms Scott’s plight. She has tried through this litigation process to obtain approval for an activity that she wished to do in the Gosford City Council area. She has never been legally represented, so far as I am aware, but has always been represented by her agent Mr Whitlock. The proceedings have been difficult for her and have been, so far as she is concerned, unsuccessful.
13. Mr Whitlock, in his submissions, has pointed out that Ms Scott has been a party to proceedings taken in both the Local Court and the District Court. Judgments have been made against her in those courts for costs. She is suffering ill health, she has no means and she faces considerable detriment if orders for costs are pursued against her. But as Sheahan J pointed out in Duncan v Moore and Ors (2000) 107 LGERA 430 at par 71:
The means of the parties is not a relevant consideration.
14. Although I have some sympathy for Ms Scott, I think that this is an appropriate case in which I should make an order for costs. The fact that Ms Scott apparently has no means is not a justification for declining to make an order of costs. Whether the council pursues that order is a matter for the council.
15. My conclusion therefore is based on all the circumstances, particularly taking into account the following matters: firstly, the warning to Ms Scott that the proceedings were untenable and patently hopeless; secondly, the invitation at an early stage to discontinue and avoid a cost consequence; and thirdly, the pursuing of the matter until discontinuance.
16. My order is as follows: That the applicant pay the respondent’s costs of the class 4 proceedings, and the costs of the motion seeking costs. The exhibits may be returned.
17. There is one other matter before the Court. That is a notice of motion brought by Ms Scott. I understand it to seek an order that the class 4 proceedings continue. That cannot be done and therefore it is appropriate that I dismiss that notice of motion as well. Accordingly, I dismiss the notice of motion returnable today, brought by the applicant, and I make no order for costs in relation to that notice of motion.
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