D'Arcy & Anor v Campbelltown City Council

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10897 of 2002

19 May 2003 VY LY D'ARCY and TALENT LY D'ARCY Applicants v CAMPBELLTOWN CITY COUNCIL Respondent Judgment

1. This is a class 1 appeal commenced by the Applicants in relation to an order dated 6 November 2002 (the Order), which was issued by the Respondent, Campbelltown City Council (the Council), under s 121B of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The Council formally revoked the Order on 26 February 2003. The matter before the Court is a Notice of Motion dated 1 April 2003 filed by the Council, seeking an order that the Applicants' appeal be summarily dismissed. The Applicant also seeks costs. I note that the Council was represented by its solicitor, Mr Seton, and the Applicants by their agent, Mr Bournes.

2. Part 13 r 5(1)(a) of the Supreme Court Rules 1970 which applies in this Court, is relevant if there is no reasonable cause of action disclosed, and is in the following terms: Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) no reasonable cause of action is disclosed … the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
3. I note that most of the arguments the Applicants' agent sought to raise in relation to the Council's Notice of Motion were irrelevant to the issue of the summary dismissal application before me. This was because, although the Council had revoked the Order which was the subject of the appeal, most of the Applicants' arguments assumed that it had not and the Applicants' agent made a number of submissions as to why the merits hearing should still proceed. I did not allow the majority of the Applicants' agent's arguments to be addressed as a result. It is clear the Council should succeed on its application for summary dismissal given the circumstances before me.

4. There were two matters about which there was argument, that is the issue of whether the Applicants could raise at a merits hearing whether there was compensation payable under s 121ZL of the EP&A Act and also the issue of costs.

Compensation 5. Section 121ZL of the EP&A Act provides for the award of compensation in particular circumstances. Section 121ZL states (1) The Land and Environment Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to a person on whom an order is served for any expense incurred by the person as a consequence of the order, including the cost of any investigative work or reinstatement carried out by the person as a consequence of the order, but only if the person satisfies the Court that the giving of the order was unsubstantiated or the terms of the order were unreasonable. (2) A claim for compensation may not be made more than 28 days after the date on which the Court gives its decision on the appeal or more than 3 months after the date of the order if an appeal is not made against the order. (3) Compensation under this section is to be awarded against the person who gave the order.

6. It is important to firstly note that compensation is not to be confused with the costs of proceedings as the Applicants' agent seemed to submit was rightly claimable in relation to compensation. I particularly refer the parties to Gardiner v Hornsby Shire Council [2000] NSWLEC 37, where Pearlman J discussed the scope of compensation that may be claimed under s 181 of the Local Government Act 1993 (a provision identical in its terms to s 121ZL(1) of the EP&A Act) and makes clear that expenses are not to be confused with the costs of proceedings. There was otherwise no evidence presented in relation to whether compensation of some other kind that may be available under s 121ZL was in fact applied for or was sought by the Applicant.

7. I secondly note that even if there was compensation which may be payable, about which I make no finding, it seems to me that such an application cannot be entertained in these class 1 proceedings. I adopt the Council's solicitor's submissions on the meaning of s 121ZL, particularly in relation to s 121ZL(2). Section 19(g) of the Land and Environment Court Act 1979 (the Court Act) clearly requires that where proceedings for compensation are commenced in relation to s 121ZL, it is necessary that this be done in separate class 3 proceedings. Accordingly, there is no order that could be made in these class 1 proceedings in relation to compensation.

Costs 8. I will deal with costs in the substantive proceedings first, and then the question of the costs of the Notice of Motion of the Council filed today.

I should note the Applicants or their agent have not filed a Notice of Motion seeking costs in the substantive proceedings, but leave was given by me to pursue that application today in Court. Mr Seton, the Council's solicitor, considered he was able to deal with the matter on this basis so that the matter of costs can be dealt with finally.

The Applicants, through their agent, are seeking costs and disbursements pursuant to s 69 of the Court Act up to 26 February 2003, which was the date when the Council formally revoked the order which was the subject of the Applicants' appeal. I note that, although this is a class 1 proceeding, the Practice Direction 1993 par 10 has been held in a number of cases in this Court, particularly that of Misra v Campbelltown City Council [No 2] [Costs] (2002) 120 LGERA 115 and Altomonte v Hunters Hill Council (2002) 120 LGERA 286 not to apply to appeals against orders of this nature. Essentially s 69 of the Court Act is the relevant provision, and that provides the Court with broad discretion in deciding costs questions.

The Applicants' agent submitted that because agents were able to appear under the Court Act, specifically under s 63, it was also open under s 69 for the Court to award costs to agents for their work before the Court.

The Applicants' agent made submissions to the effect that s 48B of the Legal Profession Act 1987, could be distinguished. I should note that s 48B expressly prohibits non legally qualified persons from acting as a barrister or solicitor. A decision of Kekatos v The Council of the Law Society of New South Wales [1997] NSWCA 288 was handed up by the Applicants' agent in support of the submission that s 48B was not a blanket rule. It was argued that in the context of the Court Act it was appropriate that a non legally qualified person may be able to charge for legal work. I reject this submission.

Section 48B of the Legal Profession Act 1987 would clearly apply to any person who comes before this Court and seeks to charge for legal work and hold themselves out as a barrister or solicitor. I should note that the Applicants' agent is not saying that he is holding himself out as a barrister or solicitor, but he did put the submission nevertheless that his costs should be payable under s 69 of the Court Act, and that s 48B of the Legal Profession Act 1987 was no bar to this, as I understand his application.

Section 69 of the Court Act does not deal expressly with the issue of what costs mean in the context of an appearance by an agent under s 63. Section 69(2)(c) refers to the need for the assessment of costs under Pt 11 Div 6 of the Legal Profession Act 1987. The inference is clear that the only costs that it is appropriate for this Court to order are legal costs appropriately incurred in Court proceedings. That means that a non legally qualified agent's costs would not be covered by s 69. I am strengthened in this view by a decision of Bignold J in Megna v Drummoyne Municipal Council (Bignold J, NSWLEC, 26 May 1988, unreported) where his Honour held that s 63 does not operate so as to extend, by necessary implication, the costs power under s 69 of the Court Act to professional legal costs for work done by representatives who are not legally qualified. A further decision of Bignold J, Harvey v Burwood Municipal Council (Bignold J, NSWLEC, 7 May 1993, unreported) confirms the earlier decision in Megna.

The lack of other cases in this area (the parties themselves have not handed up any case exactly on point) is probably due to the fact that few if any agents have sought their costs in the circumstances before me. This is not surprising given the decision of Bignold J in Megna in 1988. Accordingly, the Applicants' agent cannot get his costs.

Disbursements are another matter. I think the Applicants are entitled to out of pocket expenses in these circumstances, as recognised is available for litigants in person by Cowdroy J in the matter of Kogarah Council v McNicol [2001] NSWLEC 11, particularly at par 20, which I was referred to and which I adopt. The Applicants are entitled to commence and appropriately commenced these class 1 proceedings, appealing against the order issued by the Council under s 121B of the EP&A Act. The Council unilaterally revoked the order after the proceedings were commenced. I note that the Council did argue that each party should pay its own costs and sought to rely on the conduct of the Applicants to submit that there was no substantial notification of the difficulties with the order given by the Applicants to the Council until a statement of issues was filed. I also note that in any event the Council's solicitor did state that the Council would consent to an order that disbursements in the amount of $600 ought be payable. I am intending to make an order to that effect in the Applicants' favour.

That brings me to the last matter, which is the costs of the Council's Notice of Motion for summary dismissal which I have dealt with today. The Council seeks its costs of the hearing of its Notice of Motion heard today. The Applicants' agent argued that each party should pay its own costs of today. Given that the matter could have settled but for costs on or shortly after 26 February 2003, at which time the Council revoked the order the subject of the appeal, the Applicants continued to argue the matter should be heard on 17 and 18 June 2003 in any event and raised a large number of irrelevant submissions to that effect before me today. The Council had little alternative but to file this Notice of Motion seeking summary dismissal, which it has been successful in obtaining. Pursuant to s 69 of the Court Act, I think the Council's costs of the motion heard today should be paid by the Applicants.

Orders

1. The Applicants' appeal against the Respondent's Order issued under s 121B of the Environmental Planning & Assessment Act 1979, be summarily dismissed.
2. The hearing dates of 17 and 18 June 2003 are vacated.
3. The Applicants pay the Respondent's costs of the hearing of the Notice of Motion dated 1 April 2003.
4. In the substantive proceedings, the Respondent pay the Applicants' disbursements in the sum of $600.

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