I did not grant leave to appeal to the Appellant for her summons filed out of time and dismissed the s 56A appeal in Bolinger v Blackmore Design Group [2015] NSWLEC 38. The First Respondent seeks its costs as the successful party. I did not make an order as to costs at the delivery of the earlier judgment as the Appellant requested the opportunity to make further submissions on this aspect of the proceedings. The Second Respondent, the Council of the City of Sydney, filed a submitting appearance and does not seek costs in these proceedings. The relevant parties filed written submissions on the issue of costs.
Rule 3.7 of the Land and Environment Court Rules 2007 (the Court Rules) applies to s 56A appeals (Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138 at [48]) and states:
3.7 Costs in certain proceedings
… (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.
(3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:
(a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:
(i) in one way was, or was potentially, determinative of the proceedings, and
(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings,
…
(d) that a party has acted unreasonably in the conduct of the proceedings,
…
(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:
(i) the claim or defence (as appropriate) did not have reasonable prospects of success, or
(ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.
The First Respondent accepts that r 3.7(2) applies and considers that r 3.7(a), (d) and (f) apply to justify a costs order being made in its favour. The central issue was a question of law that being the essence of a s 56A (subsection (a)) appeal, the Appellant acted unreasonably in the proceedings given the extensive summons filed which was addressed in the absence of any evidence or other submissions being forthcoming from the Appellant or her solicitor (subsection (d)). The claim had no reasonable prospects of success as the Appellant had to satisfy the court that an extension of time to appeal out of time should be granted and no evidence was filed to provide any explanation for the delay and none of the grounds in the summons were relied upon at the hearing (subsection (f)). The one error of law alleged at the hearing, namely the weight to be attached to matters in the exercise of discretion, did not constitute a question of law. No authority in support of that submission was identified. There is no evidence only a submission that the Appellant acts in the public/community interest. More has to be done if the Court is to make a decision in a costs application on that basis.
The Appellant submitted that each party should pay its or her own costs, relying on the decision in Mike George Planning Pty Ltd v Woollahra Municipal Council (No 4) [2014] NSWLEC 187, correspondence from the Chief Judge dated 17 December 2014 concerning steps that the Appellant may wish to take in challenging the decision of a commissioner refusing her application to join as a party in the proceedings which advice was followed, and the First Respondent's plans changed from the date of the original s 39A application and the date of the final judgment. The ultimate purpose of the appeal was to allow her to appeal the substantive judgment and she therefore needed to be joined as a party for that to occur. The Appellant was unrepresented when she lodged the summons commencing appeal and corresponded with the Court. The presumptive rule is that there be no order as to costs unless the Court considers such an order is fair and reasonable, r 3.7(2) of the Court Rules. None of the circumstances in r 3.7 apply. The Appellant wished to appeal the decision on behalf of the community interest which is another reason, she submitted, a costs order should not be made against her.
I agree with the First Respondent's submissions that the letter from the Chief Judge is irrelevant to this costs application being directed to procedural advice not legal advice and dated 17 December 2014 after the summons originating the s 56A appeal was filed on 5 November 2014 in any event.
That the Respondent's plans before the Commissioner changed after the date of the unsuccessful joinder application and before the date of final judgment cannot be relevant to this costs application which is directed to an attempted s 56A appeal against the interlocutory decision of the Commissioner refusing leave to be joined as a party. Only matters known to a commissioner at the time of decision can possibly be relevant to demonstrating any question of law. If this is to demonstrate a reason for the Appellant's late filing of the summons it can have little weight given my statement in the previous sentence.
The presumptive rule is that each party pays its own costs in Class 1 proceedings which includes s 56A appeals. The circumstances in r 3.7(3) inform the Court's exercise of discretion, they are not a code which if satisfied means that a costs order will be made, Mike George citing Pepperwood Ridge Pty Ltd v Newcastle City Council [2008] NSWLEC 196; (2008) 160 LGERA 64 at [24]. I consider that it is fair and reasonable that a costs order be made in the First Respondent's favour for the reasons identified in its submissions summarised above in par 3. While not conclusive that a costs order be made, rule 3.7(a) and (f) both apply in this case. In relation to subsection (f), an essential matter the Appellant needed to address was her delay in filing the summons commencing the appeal out of time. No evidence was provided on that matter. The submission made on her behalf that the Appellant wished to wait for the final decision in the Class 1 proceedings is clearly inadequate as an explanation for delay in circumstances where the substantive proceedings were finalised in November 2014 suggesting the Appellant did not have reasonable prospects of success in her application for an extension of time to file an appeal.
As to whether the Appellant behaved unreasonably, I accept that the First Respondent incurred unnecessary costs in addressing the lengthy summons filed in November 2014, a matter which could have been clarified by the Appellant through her solicitor. The summons was lengthy and raises a large number of issues. It was maintained up until the hearing in that none of its contents were formally withdrawn and were addressed thoroughly by the First Respondent's counsel in writing prior to the hearing. The Appellant was unrepresented at the time of filing the summons but was represented from late December 2014, well before the hearing on 17 March 2015. According to the First Respondent, a timetable for the filing of evidence and submissions agreed by the parties was made by the Court on 28 January 2015 which required the Appellant to file and serve any evidence by 19 February 2015 and submissions by 3 March 2015. None was filed or served by the Appellant. Short submissions were provided by the Appellant's solicitor on the day of the hearing on 17 March 2015. This timetable submission was not disputed by the Appellant. None of the lengthy matters referred to in the summons were addressed by her solicitor. I accept this conduct caused the First Respondent to incur unnecessary costs, and was unreasonable behaviour in the circumstances of these proceedings.
I agree with the First Respondent that Mike George has quite different facts. The discussion of relevant principles when considering costs in s 56A appeals in light of the no discouragement principle in Class 1 proceedings is helpful. The ultimate conclusion on the facts of that case has no application in this matter however.
The Appellant is the next-door neighbour of the First Respondent's land the subject of the Class 1 proceedings. The Appellant's solicitor submitted that the appeal was brought in the community, meaning public, interest and no costs order ought be made against the Appellant. There is no evidence brought to support that submission and I can give no weight to statements from the bar table. No basis for establishing that the Appellant is acting in the public interest is provided.
The costs order in the First Respondent's favour should be qualified as the costs of two counsel who appeared for the First Respondent is not justified. The matter was not so complex that two counsel were necessary.
[3]
Order
The Court makes the following orders:
1. Appellant is to pay the First Respondent's costs of the summons commencing a s 56 appeal dated 5 November 2014.
2. Costs to be limited to one counsel's fees.
[4]
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Decision last updated: 01 April 2015