Warringah Shire Council v Phillip Franks

[1999] NSWLEC 136

Land and Environment Court

of New South Wales

CITATION:	Warringah Shire Council -V- Phillip Franks [1999] NSWLEC 136
PARTIES	APPLICANT: Warringah Shire Council
RESPONDENT: Franks
NUMBER:	40123 of 1997
CORAM:	Bignold J
KEY ISSUES:	Costs :- Respondent successful in resisting Applicant’s claims to injunctive relief—on basis that Court’s discretion exercised in favour of Respondent. Whether Respondent entitled to his costs
LEGISLATION CITED:
DATES OF HEARING:	05/03/1999
EX TEMPORE JUDGMENT DATE:	05/03/1999
LEGAL REPRESENTATIVES:	APPLICANT: Mr A. Hudson, Solicitor SOLICITORS: Wilshire Webb RESPONDENT: Mr P. Franks in person SOLICITORS: N/A

JUDGMENT:

IN THE LAND AND Matter No . 40123 of 1997

ENVIRONMENT COURT OF Coram: Bignold J.

NEW SOUTH WALES 3 May 1999

WARRINGAH SHIRE COUNCIL

Applicant

v.

PHILLIP FRANKS

Respondent

JUDGMENT

Bignold J:

1. This is a Motion for costs brought by Mr Franks, one of the Respondents to class 4 proceedings, which were brought by the Council against Mr Franks and two others on 26 May 1997, claiming a prohibitory injunction against each of the Respondents and restraining them from carrying out earthworks and the erection of a seawall on land known as 2 and 2A Goodwin Street, Narrabeen and on the adjoining Crown reserve forming part of the Collaroy/Narrabeen beachfront unless and until consent therefor had been obtained under the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993 and for a mandatory injunction against each of them, requiring them within 21 days to demolish the partially constructed rock boulder wall, to remove the boulders and to re-instate the land upon which the wall was constructed.

2. That litigation was only ultimately concluded by my judgment delivered on 19 March 1999. In that judgment, consent orders were made against the two other Respondents, which effectively gave the Council the relief that it had claimed in its amended class 4 proceedings, they having been amended on 3 December 1998.

3. Mr Franks did not enter into the consent orders, and the case proceeded against him. In the event, I dismissed the proceedings against Mr Franks. The reasons for that decision are set out in my reasons for judgment of 19 March 1999 and I do not propose to rehearse those matters here, but it is sufficient to say that in the exercise of the statutory discretion conferred upon the Court by Environmental Planning and Assessment Act 1979 (s 124) I came to the conclusion that the discretion should be exercised in favour of Mr Franks.

4. In paragraph 55 of those reasons, I pointed out that the circumstances in which the admitted breach of the Act had been committed, obviously had involved an emergency situation where a severe and significant storm was causing damage to the beachfront and posing a significant threat to Mr Franks' land and to neighbouring lands. During the course of the storm, Mr Franks obtained the professional opinion of Mr Hodson, which was to the effect that there was an urgent need to protect Mr Franks' land by the erection of a seawall.

5. As I point out in paragraph 55, this work was done originally only after contact had been made with the Council, but where discussions broke down, and thereafter Mr Franks caused the seawall to be completed without the Council’s approval.

6. The case was complicated a little, by the fact that it included proceedings for contempt brought against the Respondents in respect of an interim injunction that was granted ex parte by the Court on 23 May 1997, and until the Chief Judge's decision on the question of contempt, which was brought down on 19 May 1998, that matter appears to have been the focus of the litigation. On 19 May 1998, the Chief Judge found Mr Franks and Mr Anton, a contractor, to be guilty of contempt of Court, and on 24 July 1998 she imposed a fine of $15,000 on Mr Franks and a fine of $5,000 on Mr Anton. She also ordered the contemptors to pay the Council's costs of the contempt proceedings.

7. In my judgment of 19 March 1999, I made it clear that I was dealing with the question of whether there should be permanent relief granted to the Council as claimed in its class 4 proceedings, and the fact of the contempt proceedings and the finding of contempt had no bearing on my decision on that question.

8. In paragraph 56 of my reasons for judgment, I pointed out that putting aside the question of disobedience of the interim injunction, Mr Franks, in so acting to protect his property, was doing no more than what other beachfront owners had apparently done to protect their properties from damage by evulsion by the sea during the significant storm events experienced at Collaroy/Narrabeen beaches in the 1960s and 1970s. I continued:

Indeed the Council itself was to act in similar emergency fashion in August '98, when it took protective action in respect of the beachfront properties located between Wetherill and Stuart Streets.

9. I inferred that such emergency action had been taken without regard to relevant planning laws. In paragraph 57 I found that:

Mr Franks' action in causing the erection of the seawall in emergency conditions in order to protect his valuable property could not reasonably be regarded as reprehensible conduct or conduct flouting the Council's authority under planning laws or conduct calculated to cause or causing public injury.

10. In so concluding I went on to say that I did not consider Mr Franks to be subjectively morally culpable to any significant degree and pointed out that his wrongful action was to fail to obtain the requisite development consent from Council, yet paradoxically, I went on to find that the fate of his ex post facto development application suggested that the Council probably would never have granted approval in the first event.

11. I concluded, in relation to the construction of the seawall, that the erection of it had not caused environmental harm to the beachfront visually, aesthetically or otherwise, however in paragraph 59 I pointed out:

Nonetheless the evidence raises some doubt concerning the effectiveness of the seawall in terms of coastal engineering qualities and in terms of its capability providing protection from coastal hazards of beach and land erosion and evulsion by the sea.

12. However, in paragraph 60 I concluded that there:

Was no basis for concluding that the seawall presents any immediate or foreseeable public danger or that its stability is immediately at risk.

13. It was for these reasons essentially (and the other reasons which I will not rehearse that are to be found in my judgment of 19 March 1999) that I exercised the discretion vested in the Court to decline to grant the Council the mandatory injunction it had claimed.

14. Mr Franks, in a helpful submission, supported by an affidavit sworn by him on 12 April, 1999 has made his submissions on costs. Not surprisingly, he founds his case upon the conventional approach taken by the Court in class 4 proceedings that costs normally follow the event, the event here being Mr Franks' success in resisting the Council's claim. Accordingly, he argues he ought to have his costs, noting that in the hearing of the class 4 proceedings on 15 and 17 February 1999, Mr Franks did not have the benefit of legal representation, financial circumstances constraining him to act for himself, which he did so, if I may say respectfully, very effectively.

15. He understands that any costs order in his favour in these proceedings cannot, at law, provide him with legal costs in respect of the hearing of the proceedings before me earlier this year when he was unrepresented, but he may well, if he obtains a costs order, be entitled to out of pocket costs, witness costs and expenses and the like, but that is a matter for assessment of costs if an order is to be made.

16. The Council resists the order sought on the grounds that there are special circumstances in this case which operate to deny the successful litigant of his usual entitlement to costs. A number of helpful submissions have been made on behalf of the Council by Mr Hudson. Most notably, it is to be noted that from 19 May 1998, (which coincidentally was the day on which the Chief Judge announced her findings of contempt but not otherwise related to these proceedings) the Court noted that the remaining issue in the proceedings concerned the Court's discretion in favour of the Respondents. That is important because it signals the confinement of the case from that point of time, and it is vindicated by the Court's final decision, which, as I have pointed out, in fact exercised statutory discretion in favour of Mr Franks by denying the Council the injunction that it claimed.

17. The Council's primary submission is that special circumstances exist in this case such as to deny Mr Franks, the successful litigant, of all his costs, but its fallback position is that if a limited costs order is to be awarded it ought to be in respect of costs incurred subsequent to 19 May 1998.

18. The basis for this submission is that the circumstances of the case, (which are outlined both in my judgment of 19 March 1999 and the judgment of the Chief Judge on the Contempt Motion where she provides a summary of the numerous events that took place at or near Mr Franks' property between 10 May 1997 and 23 May 1997) that the Court would find that Mr Franks had brought the proceedings upon his own head, inasmuch as he was aware that the Council was contending that development consent was required, but nonetheless proceeded to build and complete the wall knowing that the requisite consent had not been obtained.

19. As the facts found by the Chief Judge (and adopted by me in paragraph 21 of my reasons for judgment on 19 March 1999) indicate, Mr Franks did have contact with the general manager of the Council on 12 May before any works were carried out. Those works commenced a few days thereafter. They were temporarily suspended at the Council's request, only to be resumed and completed after a short time of cessation after discussions between Mr Franks and the Council and the Department of Water and Land Conservation evidently broke down.

20. In these circumstances, the Council submits that the Court should deprive Mr Franks of his costs as the successful litigant because, had he not so acted in deliberate violation of the Council's authority and relevant planning laws, there would have been no need for these proceedings ever to have been brought. Certainly the Council submits that the circumstances immediately surrounding the bringing of the proceedings, including most particularly Mr Franks' actions are such as to support a finding that the proceedings were brought by him upon his own head, perhaps more especially so in the light of his violation of the Court's interim ex parte injunction, the subject of the contempt proceedings which, as I have earlier pointed out, occupied a dominant focus in these proceedings until the Chief Judge's finding of contempt on 19 May 1998, almost one year after the relevant events took place, and the Council had commenced the proceedings.

21. Mr Franks' answer to this submission is to rely upon the findings in my judgment that he acted in emergency circumstances, and in so acting was protecting his own valuable property from obvious risk of damage by the storm and sea and that in so acting he has the benefit of my finding that such conduct was not regarded as reprehensible or flouting Council's authority or calculated to cause public injury.

22. These findings, as I point out in paragraph 57, are singularly unrelated to Mr Franks' conduct which gave rise to the contempt proceedings and the finding of contempt made against him. The conventional approach to costs in class 4 proceedings, namely that where costs orders are made, costs will normally follow the event is subject to exceptions which are established in the cases. It is well-established that a successful litigant may be deprived of all or part of his costs in litigation if he has been guilty of misconduct either in or in relation to the litigation.

23. Sometimes the principle, or an allied principle, is stated in terms that a person who brings proceedings on his own head, will be denied costs even though he ultimately succeeds in resisting those proceedings. In my opinion, there is some scope for the application of that exceptional principle in the present case. As I have pointed out, as I look at the litigation history there is no doubt in my mind that its focus from the filing of the proceedings on 26 May 1997 until the Chief Judge's decision on 19 May 1998 delivered in respect of the Contempt Motions brought by the Council against the Respondents, that the proceedings and the costs of the proceedings were centrally focussed on the issue of contempt. Once that issue had been resolved on the very same day, that is 19 May 1998, the parties made the Court aware that the only remaining issue in the proceedings concerned the exercise of the Court's discretion in favour of the Respondents. In my judgment it is clear that Mr Franks, as the successful litigant, is entitled to the costs incurred in the proceedings after 19 May 1998, and as I understand the history of the litigation, those costs are substantially all of the costs incurred in respect of the claim for final relief (all costs incurred prior thereto being or substantially being related to the Contempt Motion). As I pointed out, the Chief Judge in her supplementary judgment of 24 July 1998 ordered Mr Franks and Mr Anton to pay the Council's costs of those proceedings.

24. However, I am satisfied for the reasons given, that the costs order should not include costs if any, incurred, prior to 19 May 1998, on the ground that Mr Franks' action brought the proceedings on his own head, and particularly when his action of violating the Court's interim injunction is taken into account. Indeed, although it is somewhat speculative, it may be doubted whether the litigation would have had the history that it has had, but for the fact of the disobedience of the interim injunction and the consequent Contempt Motion that was brought by the Council and ultimately vindicated in the Chief Judge's judgments of May and July 1998.

25. I do not think, however, that the exceptional circumstances carry consequences beyond 19 May 1998, because from that date on, the future of the class 4 proceedings entirely concerned the question of exercise of discretion, and in that respect costs were incurred, affidavits were prepared and filed and the case was prepared for trial to encounter that single issue. On that issue, Mr Franks was entirely successful and should have his costs.

26. Accordingly, and for all the foregoing reasons I make the following orders:

1. The Applicant is to pay the first Respondent's costs in the proceedings incurred after 19 May 1998 in a sum agreed, or failing agreement, as assessed.
2. The exhibits may be returned.