Scott v Gosford City Council - [2001] NSWLEC 282

Land and Environment Court

of New South Wales

CITATION: Scott v Gosford City Council [2001] NSWLEC 282

PARTIES:
APPLICANT
Scott
RESPONDENT
Gosford City Council

FILE 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 622

DATES OF HEARING: 20/11/2001

EX TEMPORE
JUDGMENT DATE :
11/20/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr R Whitlock (Agent)
SOLICITORS
N/A
RESPONDENT
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

MAUREEN JOYCE SCOTT

Applicant

GOSFORD CITY COUNCIL

Respondent

JUDGMENT

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWLEC 282
Decision Date: 11/20/2001

CaseChat Overview and Summary

In the case of Scott v Gosford City Council, the applicant, Maureen Joyce Scott, was engaged in litigation with the Gosford City Council over her business activities involving the sale of seafood in a public place. The applicant had filed a class 4 application seeking orders from the court to restrain the council from prosecuting her. The council, in turn, sought to strike out the application on the grounds that it was patently hopeless, frivolous, and liable to be summarily dismissed. The case was adjourned for the applicant to appeal the council's refusal of her development application. Ultimately, both the class 2 appeal and the class 4 application were discontinued. The court was tasked with determining whether costs should be awarded to the council given the discontinuance of the proceedings.

The primary issue before the court was whether the council was entitled to an order for costs in class 4 proceedings that had been discontinued by the applicant. The court had to consider the circumstances surrounding the discontinuance, the warnings given to the applicant, and the applicant's means. The court was also required to assess whether the applicant's claim was patently hopeless and whether there were any disentitling conducts by the council.

The court examined the facts and circumstances of the case, noting that the applicant's claim was found to be untenable and patently hopeless. The council had taken steps to warn the applicant about the futility of her claim and had invited her to discontinue the proceedings to avoid a cost consequence. The court concluded that the council was not acting unreasonably and that there was a special circumstance due to the hopelessness of the applicant's claim. The court referred to the decision in Gribbles Pathology Pty Ltd v Health Insurance Commission and Ors, which stated that a patently hopeless claim would be a good reason for ordering costs against the claimant. The court also noted that while the applicant had no means, this was not a relevant consideration in deciding whether to make a costs order.

The court concluded that it was appropriate to make an order for costs. The applicant was ordered to pay the council's costs of the class 4 proceedings and the costs of the motion seeking costs. The exhibits were to be returned, and a notice of motion brought by the applicant to continue the class 4 proceedings was dismissed with no order for costs.

Orders