Signorelli Investments Pty Limited v Sutherland Shire Council

[2003] NSWLEC 419

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Land and Environment Court

of New South Wales

CITATION:	Signorelli Investments Pty Limited v Sutherland Shire Council [2003] NSWLEC 419
PARTIES:	Signorelli Investments Pty Limited Sutherland Shire Council
FILE NUMBER(S):	40228 of 2003
CORAM:	Pain J
KEY ISSUES:	Costs :- Class 4 proceedings - validity of Place of Public Entertainment Licences - reasonableness of the parties' conduct
LEGISLATION CITED:
CASES CITED:	Re The Minister for Immigration and Ethnic Affairs ex parte Lai Quin (1997) 186 CLR 622
DATES OF HEARING:	10/12/04
EX TEMPORE JUDGMENT DATE :	12/12/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr T.S. Hale SC SOLICITORS: Solari RESPONDENT: Mr J. Atkin SOLICITORS: Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

40228 of 2003

Pain J

12 December 2003

SIGNORELLI INVESTMENTS PTY LIMITED
Applicant

v

SUTHERLAND SHIRE COUNCIL
Respondent

Judgment

1. Both parties are seeking a costs order in their favour in these Class 4 proceedings. It is necessary that I set out some of the history in this matter in order to give some context to this costs application.

Background

2. The Applicant commenced Class 4 proceedings originally seeking a declaration that certain conditions of a Place of Public Entertainment Licence issued in 2003 by the Council, known as the 2003 POPE Licence, had no force or effect or, alternatively, that the licence was invalid and had no force or effect. The Council must, of course, issue to the Applicant a POPE Licence in accordance with the law.

3. The original declaration sought in relation to the 2003 POPE Licence was set out in the original Class 4 application as follows:
A declaration that the deferred commencement conditions No. 1, 2 and 3 and Other Conditions of Approval number 1, 2, 3, 4, 5, 7 and 9 of the Place of Public Entertainment Licence Application No. POPE 03/0085 dated 6 February 2003 (the "Licence") issued by the Respondent to the Applicant for premises Lot 501 in DP533882 known as 223 Belgrave Esplanade, Sylvania Waters (the "premises") are invalid and of no force or effect.


4. At the commencement of the two day hearing on 13 October 2003 before me, the Applicant was granted leave to file an amended Class 4 application in Court. This amended application sought, as the first declaration, a declaration that a POPE Licence issued in 2001 by the Council to the Applicant, known as the 2001 POPE Licence, was valid and subsisting.

5. The Court heard argument for two days on 13 and 14 October 2003, largely in relation to the validity of the conditions of the 2003 POPE Licence. Supplementary written submissions were requested from the parties following the hearing and a further mention of the matter was held before me on 7 November 2003, in order that I could ask questions in relation to the supplementary written submissions received.

6. In the course of that short hearing it became clear that the Applicant could rely solely on the 2001 POPE Licence and, accordingly, there was no longer an issue in relation to the 2003 POPE Licence which I needed to determine. The parties were therefore asked to confer and bring back before the Court appropriate minutes of order. This was duly done and a declaration was made on 12 November 2003, after further short argument heard on 11 November 2003 in relation to the period of validity of the 2001 POPE Licence.

7. The orders and declarations made on 12 November 2003 were as follows:

The Court declares that:

1. The Certificate of Approval for Place of Public Entertainment certificate number 96/05 dated 13 December 2001 issued by the Respondent to the Applicant for premises lot 501 in DP 533882 known as 223 Belgrave Esplanade, Sylvania Waters remains valid and subsists up to and including 13 December 2006.

The Court orders that:

2. Costs are to be reserved.

3. The exhibits may be returned.

4. Leave granted to approach the Registrar forthwith to obtain a hearing date for costs.

The Court notes that:

5. These orders shall not affect any other orders made by this Court and undertakings given in proceedings 40122 of 1999 and 41049 of 2002 on 30 May 2003.

6. The Respondent acknowledges that the Applicant has not taken up the Place of Public Entertainment Licence application number POPE 03/0085 dated 6 February 2003 issued by the Respondent and is otherwise surrendered.

8. In relation to the 2001 POPE Licence, the Council’s position, enunciated during the second day of the hearing on 14 October 2003, was that it accepted the 2001 POPE Licence was valid and subsisting. This was realistically the earliest opportunity the Council could have indicated its position, given that it was given virtually no notice before the hearing of the Applicant’s intention to raise the validity of that licence as an issue.

9. I was informed that notice of the Applicant’s intention to amend the class 4 application was provided to the Council’s solicitors late on the Friday before the hearing. The hearing commenced on Monday, 13 October 2003. The Council’s counsel was only informed on the morning of the hearing. The Council’s supplementary written submissions dated 16 October 2003 stated that there was no dispute that the 2001 POPE Licence was validly issued.

10. In relation to the 2001 POPE Licence, the principal issue that arose for determination in these proceedings was the term for which the 2001 POPE Licence was valid. The Council argued that it was valid for five years, whereas the Applicant argued the period was indefinite, and further, that this was not an issue it was necessary for the Court to determine in these proceedings. I ultimately determined the issue of the term of the 2001 POPE Licence by holding, in accordance with the Council’s argument, that it was valid for five years. This is reflected in the first order made by me on 12 November 2003 as set out above.

11. As stated above, most of the hearing on 13 and 14 October 2003 was devoted to the validity of the 2003 POPE Licence. This was the primary issue raised by the Applicant for the period between the commencement of these proceedings in March 2003 up until the Amended Class 4 application was filed 13 October 2003, the first day of the hearing.

12. It did not become clear, until the short hearing before me, on 7 November 2003 that the Council’s position was that if both POPE Licences were valid and the Applicant did not take up the 2003 POPE Licence, the Applicant could rely on the 2001 POPE Licence. In other words, the Council accepted as at 7 November 2003 that the Applicant could surrender the 2003 POPE Licence. In consequence of this, I did not need to resolve the substantive issues argued before me in relation to the validity of the 2003 POPE Licence and the conditions contained in it. Consequently, I have formed no view as to whether or not the Applicant was likely to be successful on this aspect of its case.

13. I note that no final orders or declarations were made in relation to the 2003 POPE Licence in my orders made on 12 November 2003. The Court noted that the Applicant was surrendering the 2003 POPE Licence.

Submissions of the parties

14. I will now briefly set out the parties arguments in relation to costs. Both parties argued that they were ultimately successful in obtaining the result they sought in these proceedings and seek their costs in relation to these proceedings.

15. The Applicant relied on the decision of ReThe Minister for Immigration and Ethnic Affairs ex parte Lai Quin (1997) 186 CLR 622 to support its argument that it acted reasonably in commencing the proceedings. The Applicant also relied on the course of conduct of the parties in other Class 4 proceedings in this Court, namely, proceedings brought by the Council for an interlocutory injunction in December 2002 against the Applicant on the basis that no valid POPE Licence was then held by the Applicant for the premises. The interlocutory injunction application in those proceedings was ultimately settled on the basis that certain undertakings were given to the Court that work relating to fire safety be done.

16. These other proceedings are referred to in prayer 5 of the orders made by me on 12 November 2003. I understand that these other proceedings concerned a number of issues beyond just the POPE Licence, including possible illegal building work at the Applicant’s premises.

17. It was said by the Applicant that the behaviour of the parties in that context meant that the Applicant had no choice but to commence these proceedings as a result of the Council’s requirement that it apply for the 2003 POPE Licence. The Applicant argued that, given the status of the 2001 POPE Licence, the Court should take into consideration the fact that the Council was in error in requiring the Applicant to obtain the 2003 POPE Licence. I must note that if the Applicant had raised the issue of the validity of the 2001 POPE Licence in the other Class 4 proceedings it may not have needed to commence this case.

18. Further the Applicant argued that it was almost certain to succeed in these proceedings so that the Court is able to consider awarding costs as contemplated in Lai Quin at p 625. Although it is true that I have heard argument in full in relation to all the matters the parties put before me I am unable to conclude, and it is not appropriate that I do so now in this costs application, whether or not the 2003 POPE Licence was valid. I do not therefore accept this argument of the Applicant as, in my view, the circumstances referred to in Lai Quin do not arise here.

19. The Applicant also argued that, had the Council indicated its concessions that the Applicant need not comply with the terms of the 2003 POPE Licence and that the 2001 POPE Licence remained operative to the Applicant at an earlier time, the matter would not need to be litigated as it was. That may be true, but that submission overlooks the Applicant’s conduct of its case. There is no doubt that had the Applicant amended the Class 4 application earlier, as prudent case preparation and the Court rules actually require, it may have been may well have been unnecessary for it to seek the relief it sought in relation to the 2001 POPE Licence at the hearing before me or the hearing before me could have been truncated.

20. The Council argued that it was largely successful because the Applicant had commenced proceedings seeking relief in relation to the 2003 POPE Licence and its entitlement to such relief remained the issue up until the hearing, when the claim was abandoned. The final orders made by the Court simply note that that 2003 POPE Licence is surrendered. It was the Council’s position from the second day of the hearing that the 2001 POPE Council was validly issued and the only dispute was in relation to the terms of that licence. Further, the Council it said it had acted reasonably in the proceedings given the very late amendment of the Applicant’s case in relation to the 2001 POPE Licence on the first day of the hearing.

21. Further, the Council argued that it was only on the second day of the hearing that the Applicant made clear that it did not seek to rely at all on the 2003 POPE Licence and that, in fact, the relief it sought in its amended Class 4 application was not pressed in relation to the 2003 POPE Licence approval. Given these circumstances the Council asserts that it behaved reasonably. The Council argued that the Applicant had not acted reasonably because it commenced and maintained the action in relation to the 2003 approval and it did not ultimately seek relief in relation to that licence. Further, there was an obvious, better and more expeditious review available, namely a merits review in Class 1 proceedings.

Finding on costs

22. I do not accept the Council’s argument that, as the Applicant had Class 1 merit review proceedings available to it, it was more appropriate that those be pursued rather than these Class 4 proceedings in which a declaration of invalidity was sought. The Applicant was entitled to commence these proceedings as it did. I also accept that it was reasonable for the Applicant to commence these proceedings given the Council’s view that the 2003 POPE Licence ought to be obtained by the Applicant.

23. I will not make any adverse finding to the effect that the Applicant should have raised the 2001 POPE Licence and the 2003 POPE Licence issues before me in the separate Class 4 proceedings as I do not consider I know enough about those proceedings in total to so conclude. Nor am I convinced that those proceedings are relevant to this case for current purposes.

24. It is, as the Council submitted, necessary to look at the course of conduct in these proceedings only. Due to both parties conduct of their respective cases, the legal issues in this matter evolved over the two days of hearing and during the short hearing before me on 7 November 2003. The amendment of the relief sought by the Applicant to include the 2001 POPE Licence on the first day of hearing was, in my view, clearly a substantial change in the Applicant’s case.

25. I do not accept, however, as the Council urged on me, that the Applicant ultimately abandoned completely the relief sought in relation to the 2003 POPE Licence. I consider the Applicant only felt able not to proceed with its challenge to the 2003 POPE Licence once the Council conceded on 7 November 2003 that the Applicant could surrender that licence and rely on the 2001 POPE Licence.

26. If the Council had made its concession in relation to the 2003 POPE Licence earlier than 7 November, perhaps in the course of the hearing on 14 October, there would have been a small costs saving. Given the very late amendment by the Applicant of its claim on 13 October 2003, it could not reasonably be expected that the Council would make its concession earlier than the second day of the hearing on 14 October 2003. Given that the concession was made on 7 November 2003, the next occasion the matter was before me, I do not think the Council delayed to any great degree in making its concession in the circumstances.

27. The Applicant did, in part, obtain the relief it sought in relation to the 2001 POPE Licence, as reflected in prayer 1 of the 12 November declaration made by me, although not for the term it wanted. To that extent it was partly successful. Given the conduct of the proceedings by the Applicant however I do not think it should have its costs in relation to this issue, being the 2001 POPE Licence. I have already noted that if the Applicant had amended its pleadings earlier or commenced the case on the basis which was ultimately argued, giving the Council proper time to consider its case, this may well have led to the hearing being reduced or even unnecessary. I do not award costs in the Applicant’s or Council's favour in relation to the 2001 POPE Licence.

28. Turning now to the 2003 POPE Licence I do not make any finding on the merits of the Applicant’s claim in relation to the 2003 POPE Licence, which was the case both parties prepared for up to the hearing. I can make no award for costs based on any likelihood of the outcome in either party’s favour. Given the circumstances I have already noted above, I do not think the Council can argue it was successful on this issue on the basis of the Applicant’s abandoning its claim. I do not think the Applicant acted unreasonably in that regard.

29. Neither party is able, in my view, to demonstrate why it should receive its costs due to the unreasonable behaviour of the other party. I do not think it appropriate to award either party its costs as a result. In my view each party should pay its own costs and I make that order in these proceedings.

30. The Court orders that:
1. Each party pay its own costs.
2. The exhibits are to be returned.