Shellharbour City Council v Stewart

[2008] NSWLEC 216

Land and Environment Court

of New South Wales

CITATION:

Shellharbour City Council v Stewart [2008] NSWLEC 216

PARTIES:

APPLICANT:
Shellharbour City Council

FIRST RESPONDENT:
Helen Stewart

SECOND RESPONDENT:
Geoff Rose

FILE NUMBER(S):

41097 of 2004

CORAM:

Biscoe J

KEY ISSUES:

Costs :- indemnity costs – whether successful respondent in class 4 proceedings entitled to indemnity costs on bases of applicant’s unreasonable conduct or on Calderbank principles

LEGISLATION CITED:

Local Government Act 1993 (NSW)

CASES CITED:

Calderbank v Calderbank [1975] 3 WLR 586
Dukemaster Pty Limited v Bluehive Pty Limited [2003] FCAFC 1
Jones v Bradley (No 2) [2003] NSWCA 258
Morrison v Defence Maritime Service Pty Limited [2007] NSWLEC 552
Shellharbour City Council v Stewart [2008] NSWLEC 151
Shellharbour City Council v Stewart [2007] NSWLEC 727

DATES OF HEARING:

23 June 2008

EX TEMPORE JUDGMENT DATE:

23 June 2008

LEGAL REPRESENTATIVES:

APPLICANT:
Mr F M Douglas QC and Mr K Connor SC
SOLICITORS:
Maddocks

FIRST RESPONDENT:
Mr R Watson, solicitor
SOLICITORS:
Robert Watson Solicitor

SECOND RESPONDENT:
Mr P Maiden SC
SOLICITORS:
Russell McLelland Brown

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

23 June 2008

41097 of 2004

SHELLHARBOUR CITY COUNCIL v STEWART & ANOR.

JUDGMENT

1 HIS HONOUR: On 23 April 2008 I delivered judgment in favour of the second respondent, Councillor Geoff Rose: Shellharbour City Council v Stewart [2008] NSWLEC 151. Now before me is his motion for an order for indemnity costs against the applicant council. The council accepts that he is entitled to an order that the council pay his costs on the usual basis but resists an order for indemnity costs.

2 Councillor Rose submits that this was a minor matter because the evidence indicates that the council’s general manager, Mr Weir, was not concerned by the publication of his remuneration details; the mayor, Councillor Hamilton, said he did not have any concern with people knowing of the remuneration package of Mr Weir; and Councillor Hamilton indicated that the remuneration package was to be known by the public at some stage after it was agreed. Those matters are fairly put so far as the evidence goes. However, in principle, I do not think that the disclosure of such information should be dismissed as insignificant.

3 Councillor Rose submits that it was open to the council to deal with this allegation against him through the code of conduct committee procedure, rather than putting him to the defence of court proceedings. That is true. However, the legislature has provided for the alternative course that the council pursued. I do not think that the fact that the code of conduct committee course was available should bear on the issue of indemnity costs.

4 Councillor Rose submits that the inference can be drawn that, because of the huge investigation costs of the council, the proceedings could not be ended without responsibility being sheeted home to a member of the council. I do not accept that an inference should be drawn, if this is…