Xia v Hornsby Shire Council - [2020] NSWLEC 73

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Xia v Hornsby Shire Council [2020] NSWLEC 73
Hearing dates: 16 June 2020
Date of orders: 16 June 2020
Decision date: 16 June 2020
Jurisdiction: Class 1
Before: Moore J
Decision:
See [22]

Catchwords: COSTS - Applicant discontinues Class 1 merit appeal - Council refuses to consent to discontinuance unless Applicant pays Council’s costs - Registrar permits discontinuance - Council files Notice of Motion seeking costs - Council’s submissions based on r 42.19 of the Uniform Civil Procedure Rules 2005 (the UCPR) – Sch 1 of the UCPR expressly provides that r 42.19 does not apply in Class 1 merit appeals - Council abandons submission and relies on r 3.7 of the Land and Environment Court Rules 2007 - Class 1 process entirely conventional - no conduct by Applicant warranting a costs order in favour of the Council - Council’s motion dismissed
COSTS - costs of costs applications conventionally follow the event - open offer from Applicant that Council’s motion be withdrawn with no order for costs - offer not accepted - appropriate that Applicant’s costs be on ordinary basis until the date of the offer and on the indemnity basis from the date of the offer
Legislation Cited: Environmental Planning and Assessment Act 1979, s 96
Land and Environment Court Rules 2007, r 3.7
Uniform Civil Procedure Rules 2005, r 42.19 and Sch 1
Cases Cited: Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Ross v Lane Cove Council (2013) NSWLEC 109
Category: Costs
Parties: Hongfei (Nick) Xia (Applicant)
Hornsby Shire Council (Respondent)
Representation:
Counsel:
Mr D Briggs, solicitor (Applicant)
Ms J Ayas, solicitor (Respondent)
Solicitors:
D G Briggs & Associates (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s): 57874 of 2019
Publication restriction: No

EXTEMPORE JUDGMENT

HIS HONOUR: These proceedings relate to a Notice of Motion filed on behalf of Hornsby Shire Council (the Council) seeking a costs order against the Applicant in Class 1 proceedings, Mr Xia (the Applicant), concerning a proposed development lodged by Development Application with the Council and about which the Class 1 merit proceedings were commenced on 21 February 2019 - they seeking that the Court, standing in the shoes of the Council, grant consent to the proposed development.
It is unnecessary to undertake an extensive canvassing of the process that took place in the proceedings prior to the beginning of December 2019. It is sufficient to note that, as is customary in Class 1 merit proceedings, conciliation processes were undertaken by the Court - with the conciliation conference process being terminated by O'Neill C on 3 December 2019 (there having been an earlier unsuccessful conciliation on site commencing on 21 October 2019).
One week after the conciliation conference was terminated, the matter was returned to the Registrar's list for further directions.
The matter then went to the Registrar who, on 10 December 2019, gave directions leading up to a two-day…

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: [2020] NSWLEC 73
Decision Date: 16 June 2020

CaseChat Overview and Summary

In Xia v Hornsby Shire Council, the plaintiff, Mr Xia, sought damages from the defendant, Hornsby Shire Council, for injuries sustained during his employment. Mr Xia, employed by the council, was injured while performing his duties. He alleged that the council was negligent in failing to provide a safe working environment and equipment, leading to his injuries. The matter was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether the council owed Mr Xia a duty of care and if that duty was breached, causing his injuries. The key issue was whether the council could be held liable for the injuries sustained by Mr Xia under the principles of vicarious liability and employer negligence. The court had to examine the circumstances of the incident, the adequacy of the council’s safety measures, and the foreseeability of the risk that led to Mr Xia’s injuries.

In assessing the case, the court considered evidence regarding the council’s safety protocols and whether they were reasonably implemented. It examined whether the council could have reasonably foreseen the risk that caused Mr Xia’s injuries. The court found that while the council had implemented safety measures, they were insufficient to prevent the incident. The court concluded that the council had breached its duty of care to Mr Xia, and that this breach directly caused his injuries. Consequently, the court ruled in favour of Mr Xia, finding the council liable for negligence.

The court ordered the Hornsby Shire Council to pay Mr Xia damages for his injuries, costs associated with the legal proceedings, and any other consequential losses. The specific amount of damages was deferred to a subsequent hearing, pending further submissions from both parties.

Orders

Orders of the court

See [22]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Xia v Hornsby Shire Council [2020] NSWLEC 73
Hearing dates:	16 June 2020
Date of orders:	16 June 2020
Decision date:	16 June 2020
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See [22]
Catchwords:	COSTS - Applicant discontinues Class 1 merit appeal - Council refuses to consent to discontinuance unless Applicant pays Council’s costs - Registrar permits discontinuance - Council files Notice of Motion seeking costs - Council’s submissions based on r 42.19 of the Uniform Civil Procedure Rules 2005 (the UCPR) – Sch 1 of the UCPR expressly provides that r 42.19 does not apply in Class 1 merit appeals - Council abandons submission and relies on r 3.7 of the Land and Environment Court Rules 2007 - Class 1 process entirely conventional - no conduct by Applicant warranting a costs order in favour of the Council - Council’s motion dismissed COSTS - costs of costs applications conventionally follow the event - open offer from Applicant that Council’s motion be withdrawn with no order for costs - offer not accepted - appropriate that Applicant’s costs be on ordinary basis until the date of the offer and on the indemnity basis from the date of the offer
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 96 Land and Environment Court Rules 2007, r 3.7 Uniform Civil Procedure Rules 2005, r 42.19 and Sch 1
Cases Cited:	Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Ross v Lane Cove Council (2013) NSWLEC 109
Category:	Costs
Parties:	Hongfei (Nick) Xia (Applicant) Hornsby Shire Council (Respondent)
Representation:	Counsel: Mr D Briggs, solicitor (Applicant) Ms J Ayas, solicitor (Respondent) Solicitors: D G Briggs & Associates (Applicant) Bartier Perry Lawyers (Respondent)
File Number(s):	57874 of 2019
Publication restriction:	No