Ervin Mahrer and Partners v Strathfield Council

Land and Environment Court (NSW)|2002-05-29|Before: Bignold J

The Applicant opposes the Council's Motion on two discrete grounds. Firstly it submits that the Court lacks the power to make the costs orders sought by the Council by virtue of the perfected Orders made by the Court on 5 April 2002 which finally disposed of the proceedings when the following orders were made: -
The appeal is dismissed.
Development consent is refused.
The exhibits are returned.
No order as to costs.

Pursuant to Part 15 Rule 4 of the Rules of Court, the Registrar on 23 April 2002 signed, filed and sealed a minute of the orders made by the Court on 5 April 2002. It is to be noted that this action occurred after the Council's Notice of Motion was filed.

The Council's response to the Applicant's defences is to submit that Order 4 included in the Orders made on 5 April 2002 does not apply to the costs that are now claimed in the Council's present Motion, but that if it does so apply, the Court should set aside or vary Order 4 so that consideration by the Court of the Council's present Motion is not precluded by the existence of that order, because it was made in circumstances where the parties had not addressed any submissions or arguments to the Court at the final hearing on the question of costs. Finally, the Council submits that in the exercise of its discretion, the Court should make the costs order sought by the Council because the circumstances and history of the litigation revealed that there were exceptional circumstances justifying the departure from the Court's settled practice of not ordering costs in planning appeals by making the limited costs order claimed by the Council in respect of its "costs thrown away" in the proceedings by virtue of the Applicant, on the final hearing of the appeal, relying upon the Series B amendment plans of the proposed development rather than on the original plans (or the Series A amendment plans, which had been the focus of the interlocutory proceedings, the subject of my judgment of 30 November 2000 reported in 111 LGERA 308).

The competing arguments accordingly raise the following three questions (which need to be separately considered) -

What is the effect of the Court's Order made on 5 April 2002 that there be no order as to costs?

Does the Court have the requisite power to entertain the Council's costs Motion?

If the Court is possessed of the requisite power, how should it exercise its costs discretion? B. THE EFFECT OF THE COURT'S ORDER MADE ON 5 APRIL 2002 THAT THERE BE NO ORDER AS TO COSTS

The Applicant submits that the clear meaning of that Order is that each party bear its own costs in the whole of the proceedings including costs incurred in interlocutory stages of the proceedings except where separate costs orders have been made in respect of any interlocutory proceedings (eg my order made on 30 November 2000 that the Applicant pay the Council's costs of the Council's Motion to vacate the original hearing dates - see [2000] 111LGERA 308).

It appears that the Applicant's interpretation of the Court's Order (that there be no order as to costs) includes within its scope and ambit, costs that were reserved at interlocutory stages in the proceedings eg the costs reserved in respect of the Applicant's Motion seeking leave to rely upon amendment plans (the Series B plans) and of the Council's competing Motion that the Court had no power to grant that leave - see [2001] 115LGERA 259.

The first question is: What does the costs order mean? The effect of the Order "No order as to costs" means that each party must bear his own costs: see Halsbury's Laws of England (4th Ed) Volume 37 at par 712 citing the decision of the English Court of Appeal in Re Hodgkinson; Hodgkinson v Hodgkinson (1895) 2 Ch 190 where the Court in so holding, acknowledged the common form of such an order which was perfectly familiar to the Court. Oshlack v Richmond River Council (1998) 193 CLR 72 provides a recent example of a costs order being so formulated (by Stein J when a Judge of this Court), and being held to have that settled meaning.

The next question is: What is the scope of the costs order? Prima facie the scope of the Order is that it deals with the "costs of or incidental to the proceedings": - see the definition of "costs" the Land and Environment Court Act 1979, s 69(1)(a) - and accordingly, prima facie it covers the costs of the whole proceeding.

However, where separate costs orders have been made at earlier interlocutory stages of the proceeding (such as occurred in the present case) the final costs order does not affect those separate costs orders unless otherwise expressly so providing: see Part 52A, r 48 of the Supreme Court Rules (adopted by the Rules of this Court Part 16 r 16) which provides as follows: An order as to costs made in proceedings after 30 June 1994 shall, unless the Court otherwise orders, be taken to expressly confirm all earlier orders as to costs made in the proceedings .

The position of the scope and operation of the final costs order in respect of "reserved costs" incurred at interlocutory stages of the proceedings is not so clear cut, and although it is not strictly necessary to delve into this matter, I would nevertheless express my opinion on the question which has some practical importance concerning the practice and procedure of this Court.

Immediately following the abovementioned passage extracted from Halsbury the following statements are made (omitting the footnotes): Reserved costs are costs which will not be allowed on taxation unless the court makes a specific order dealing with them, and are not included in the costs of the action.

Among the authorities cited for the first proposition contained in the extract is the case of British Natural Premium Provident Association v Bywater (1897) 2 Ch 531 where Byrne J, after consulting the judges of the Chancery Division stated the following practice for the guidance of registrars and taxing masters: Where interlocutory applications have been ordered to stand to the trial and are not then mentioned to the judge, the costs of such applications are to be treated as costs in the action and taxed accordingly and need not be mentioned in the judgment. Where interlocutory applications have been disposed of, but the costs have been reserved, such costs are not to be mentioned in the judgment or order, or allowed on taxation, without the special direction of the judge.

This statement of practice is radically different from the commentary provided in Ritchie's Supreme Court Procedure at p 3158 under the heading "Reserved costs - interlocutory orders" which includes the following: Where costs of interlocutory proceedings are reserved the effect of so doing is to make the costs those of the successful party in the proceedings - unless some contrary order is made by the Court: Woods v Walsh (1989) 22 FCR 204. ……….. ………..

The reference to Woods v Walsh is to the decision of Lee J in the Federal Court of Australia. However, since that decision was based upon the particular provisions of the Federal Court Rules namely Order 62 rr 15 and 29 (which do not appear to have any counterpart in the Supreme Court Rules) its application to the NSW context must in my respectful opinion, be considered to be in some doubt.

Nonetheless, Lee J's judgment contains an interesting survey of how other Rules of Court deal with the question of reserved costs in interlocutory proceedings. For example, his Honour noted that in the 1986 Revision of the Rules of the Supreme Court of the United Kingdom, Order 62 r 3(6) had reversed the effect of the "historical rule" (reflected in British Natural Premium Provident) that reserved interlocutory costs were not included in any general order as to costs in the proceedings unless they were specifically made the subject of the Court's orders. Again, I do not understand the Supreme Court Rules to contain any counterpart of Order 62 r 3(6) of the UK Supreme Court Rules.

The foregoing discussion leads me to conclude that the question whether the costs order included in the orders finally disposing of the present proceedings, applies to the reserved costs at interlocutory stages in the proceedings, must remain in some doubt, although in my opinion, in the absence of any rule reversing the effect of the "historical rule" the practice in this Court should maintain that rule.

However, since the costs order under present consideration was that there be no order as to costs, and since there has been no application made in respect of the reserved costs, the question is ultimately academic, and need not be finally resolved in this case, because it is at least clear that the Council's present Motion claiming costs is not made in respect of reserved costs at interlocutory stages in the proceedings. Rather, it is a fresh claim made after the Court had finally disposed of the proceedings.

Accordingly, and for present purposes, it is sufficient for me to hold that Order 4 of the orders made on 5 April 2002 may legitimately be interpreted as applying to the costs in the whole of the proceedings (except for costs the subject of separate costs orders made at interlocutory stages in the proceedings). Such costs would include the costs now claimed in the Council's Notice of Motion.

In leaving this question, it must be observed that the meaning and effect of Order 4 is but a subset of the wider effect of the Court's Orders made on 5 April 2002 in finally disposing of the proceedings, namely that those orders regularly and finally concluded the proceedings. In this wider context and effect, the existence of Order 4 might be thought to have no legal significance: cf Birrigan Gargle Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 80 LGERA 389 where Bannon J held that he had no jurisdiction to make any costs order in proceedings which had been regularly concluded by consent orders which had not included any costs order (including any order reserving the question of costs) in circumstances where the Motion claiming costs had been filed after the consent orders had been perfected by the Registrar filing a signed and sealed copy of the Orders in accordance with the Rules of Court. Compared with Birrigan Gargle and the present case, by virtue of the existence of Order 4, must be considered to be a fortiori.

For all of the foregoing reasons, I hold that the costs order made on 5 April 2002 applies to the costs claimed in the Council's present Notice of Motion. This leads to the next question which is whether, notwithstanding that effect of that Order, the Court is vested with power to entertain the Council's present Motion. C. THE COURT'S POWER TO ENTERTAIN THE COUNCIL'S COSTS MOTION

Founding itself upon the foregoing interpretation of the Court's Order that there be no order as to costs, the Applicant's argument proceeds to assert that the Court lacks the power (inherent or statutory) to review or re-open that perfected order. In support of its argument of the want of inherent or implied power vested in the Court, the Applicant relies upon the decision of the High Court of Australia in DJL v Central Authority (2000) 201 CLR 226, a case involving the powers of the Family Court of Australia, but which has been applied to this Court in subsequent judgments of this Court, the most recent of which being the decision of Talbot J in Wollong Pty Ltd v Shoalhaven City Council (No 2) (2002) NSWLEC 80.

In support of its argument that the Court lacks the relevant statutory power, the Applicant submits that no case has been made out by the Council for invoking any potentially available statutory power (eg the power conferred by Part 15 r 9 of the Rules of Court to set aside or vary an order) and indeed that the Council's Motion claiming the costs order does not contain any application to set aside or vary the Court's order that there be no order as to costs. It was only on the hearing of the Council's Motion that the Council applied to vary or set aside Order 4 of the Court's orders made on 5 April 2002 if that course were a necessary precondition to empower the Court to entertain the Council's Motion.

In DJL, the majority judgment of the High Court approved of the following statement by Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529: These qualifications apart, the rule was that restated by Barwick CJ in Bailey v Marinoff with respect to the New South Wales Court of Appeal:

Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.

In DJL, the majority judgment held that the Full Court of the Family Court lacked the "power to reopen its final orders after entry", having earlier stated that it was inaccurate to speak of a "non-common law Court" as possessing "inherent" jurisdiction or power, before expressing the following conclusion to the question earlier posed (namely "whether the creation of the Family Court as a superior court of record carried with it the statutory power to reopen a final order after entry"): The Family Law Act 1975 (Cth) in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as a superior court of record . Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act .

In Starray v Sydney City Council (2001) 112 LGERA 438, I applied the decision in DJL to this Court when I said, at 442 immediately following citation of the passage just quoted - These observations as to the position of the Family Court with respect to the absence of inherent jurisdiction or power and the lack of express or implied power, apply with equal force to this Court, it too being by statutory creation, a superior court of record. It follows that the several earlier decisions of this Court which have held that the Court is vested with inherent power to re-open perfected judgments or orders, (including the recent decision of Talbot J in Memel Holdings Pty Ltd v Pittwater Council [2000] NSWLEC 227 upon which the applicant relied) can no longer be regarded as correctly stating the law.

It follows that the Court has no inherent or implied jurisdiction or power to reopen the perfected Court orders it made on 5 April 2002.

However, the common law principle enunciated in Bailey v Marinoff as approved by the High Court in DJL, expressly recognises the possibility of the existence of a relevant statutory power displacing or modifying the common law principle.

Indisputably such a relevant statutory power is conferred upon the Court by Part 15 r 9 of the Rules of Court. That Rule empowers the Court to "set aside or vary an order" in a number of specified circumstances, including the following circumstances which are potentially available in the present case - (b) if notice of motion for the setting aside or variation is filed before the signing and filing of the minute of the order under rule 4 …......... ….......... (e) if the order does not reflect the intention of the Court.

In Starray I held that the statutory power conferred by Part 15 Rule 9(b) had been enlivened by the filing of a motion in that case before the Court's order had been perfected, even though the motion in terms, had not claimed relief by way of the setting aside of the order. Nonetheless, I there held that the ultimate purpose of the motion was to obtain the setting aside or varying of the Court's perfected order. However, I proceeded additionally to grant leave for the amendment of the motion, if such a course were necessary, holding (at 444) that the amendment took effect, not from the date when the amendment was made, but from the date of the original document which it amends, thereby enlivening the power conferred by Rule 9(b).

Whereas the same type of reasoning could reasonably be adopted in the present case in respect of the Council's Notice of Motion which was filed before the Order of 5 April 2002 had been perfected thereby producing the same result as in Starray, that the statutory power conferred by Rule 9(b) was relevantly enlivened, I am of the opinion that there is available in the present case a more obvious and appropriate source of power for setting aside or varying order 4, namely the "slip rule" as provided by Part 10 r 7 of the Rules of Court.

For the same reason, I do not think it necessary to explore the availability of the separate ground provided by Part 15 r 9(e) of the Rules of Court of the Rules of Court.

Part 10 r 7(1) of the Rules of Court provides as follows: If there is a clerical mistake, or an accidental error or omission, in a judgment or order, or in a certificate, the Court, on the application of any party or without any such application, may, at any time, correct the mistake or error.

Expounding the nature and scope of a similarly worded 'slip rule" that is contained in the High Court Rules, the High Court in L Shaddock and Associates Pty Ltd v Parramatta City Council No 2 (1982) 151 CLR 590 said at 594/595: Order 29, r. 11 is in the traditional form of a slip rule. It reflects the inherent jurisdiction of a court at any item to correct an error in a decree or order arising from a slip or accidental omission (see Milson v. Carter ). In terms, the rule provides, inter alia, that an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court or a Justice on motion or summons . The rule extends to authorize an omission resulting from the inadvertence of a party's legal representative (see Fritz v. Hobson ; Chessum & Sons v. Gordon ; In re Inchcape (Earl) ; Coppins v. Helmers & Brambles Constructions Pty. Ltd. ; Tak Ming Co. Ltd v. Yee Sang Metal Supplies Co ) . This is so, regardless of whether the order has been drawn up, passed and entered (see Milson v. Carter ; Fritz v. Hobson) . (References to the cited cases have been omitted.)

In that case, where the High Court, in upholding an appeal on the question of the liability of the Council in negligence had awarded damages in the sum that had been assessed by the trial judge but which did not include any order for interest payable on that sum, the successful appellant applied pursuant to the slip rule for an award of interest payable on the amount of damages awarded.

Originally no such order had been sought in the appeal to the High Court and the matter had not been adverted to in the argument on the appeal or in the High Court's reasons for judgment. After noting that "the undisputed evidence on the present application is that the failure to advert to the matter in argument was an accidental omission on the part of counsel" the Court said at 593: We have no doubt that, if the matter had been adverted to in this Court and this Court possessed the power to make such an award of interest, it would have made it

One of the cases cited by the High Court in Shaddock in support of the proposition that the slip rule extends to an omission resulting from inadvertence of a party's legal representative is the decision of Fry J in Fritz v Hobson (1880) 14 ChD 542. It provides an apt illustration for the present case of the application of the slip rule. In that case, there was a motion to vary or correct a perfected judgment to give the plaintiff who was successful in the proceedings a costs order in respect of his application for interlocutory injunction which had not been determined but had been adjourned to the trial without any costs order being made or costs being reserved. In rejecting the Defendant's objection that the Court had no jurisdiction to "re-hear the case" Fry J held that he had jurisdiction to make the order pursuant to a number of sources including the slip rule, in respect of which he said the following at 561/562: In my view the error in the present case has arisen from the accidental omission of counsel to call my attention to the adjourned motion when I pronounced my judgment, an omission very natural at a time when counsel's attention was directed to matters of greater importance.

In my judgment, it is clear beyond argument that if the Council's legal representative at the final hearing had asked me to reserve the question of costs which the Council anticipated that it wished to claim as costs incurred in the proceedings but thrown away by virtue of the Applicant electing to proceed at the final hearing with the Series B amendment plans in substitution for the original plans (or the Series A amendment plans) I would have reserved that question from the costs order that I made (which costs order merely reflected the Court's usual practice of not awarding costs in planning appeals save for exceptional circumstances).

It follows in my judgment that the "slip rule" contained in Part 10 r 7(1) of the Rules of Court provides an appropriate source of power for the Court to consider on its merits the Council's present claim to costs thrown away.

Furthermore, I am of the opinion that the Council has moved with appropriate despatch to invoke that available source of power by filing its Notice of Motion (supported by detailed affidavit evidence) some two weeks after final orders were made in the proceedings. Accordingly, there is no discretionary factor that would justify the Court withholding relief pursuant to the slip rule.

In so concluding, I accept the Applicant's submission that the Council could have made its application for costs thrown away soon after the Applicant had elected to rely upon the Series B amendment plans, rather than waiting until the Court had finally disposed of the proceedings. However, once the Applicant had so elected, the immediate focus for the proceedings obviously became the parties' preparation for the trial, based upon those amendment plans. Moreover, the shape and content of the Council's preparation of its case for trial would almost certainly bear upon the question whether the Council had incurred costs in the proceedings that had been thrown away or wasted by the Applicant's election to rely upon the Series B amendment plans.

Accordingly, for all the foregoing reasons, I would hold that Part 10 r 7(1) of the Rules of Court empowers the Court to correct any accidental omission in the costs order which was included in the final orders made on 5 April 2002 to reserve from that order the question raised by the Council's present Notice of Motion, and I would exercise that discretion to empower the Court to adjudicate upon the merits of the Council's Notice of Motion. D. THE EXERCISE OF THE COURT'S DISCRETION ON COSTS

In advancing its case for an order for costs thrown away the Council accepts the relevance to the required adjudication of the Court's usual practice of not awarding costs in planning appeals save for exceptional circumstances, such practice being reflected in par 10 of the Court's current Practice Direction.

The Council's claim is that it has incurred costs in the proceedings by initially preparing its case in respect of the original development plans, which costs were ultimately wasted by virtue of the Applicant, at the final hearing, relying upon the Series B amendment plans. This had occurred after the Applicant, having obtained the Court's leave to rely upon those amendment plans (see 115 LGERA 259), had thereupon notified the Council and the Court of its election to rely upon those plans, which action had necessitated Council preparing its case addressing those plans. It claims that this state of affairs, having been solely caused by the Applicant, relevantly constitutes "exceptional circumstances" within the meaning of the Court's settled practice in respect of costs in planning appeals, justifying a costs order in favour of the Council as claimed in its Notice of Motion.

The Council's claim to costs thrown away by virtue of the Applicant relying upon the Series B amendment plans (in substitution for the original plans or the Series A amendment plans) involves two essential elements, both of which the Council has the onus of establishing, namely -

(i) that costs incurred by the Council in the proceedings were relevantly thrown away or wasted by virtue of the Applicant's conduct in the proceedings and in particular by its ultimate reliance at the trial upon the Series B amendment plans; and (ii) that the Applicant's conduct in the proceedings and particularly in relying upon the Series B amendment plans relevantly constitutes "exceptional circumstances" within the meaning of the Court's settled practice of not awarding costs in planning appeals save for exceptional circumstances.

However, additionally it is to be noted that the Council's claim as formulated in par 1(a) of its Motion effectively revives the Council's earlier claim to costs thrown away upon the vacation of the original hearing dates. That earlier claim failed for the reasons given in my judgment of 30 November 2000 (reported in 111 LGERA 308) when I said the following at 317: 40 Moreover, there is a fundamental difficulty in the Council's argument seeking an order for costs thrown away inasmuch as it is founded upon the proposition that the Applicant has either abandoned or is bound to abandon its original proposal in preference for the revised proposal, whilever the proceedings remain on foot (which they currently do) and the ultimate position advanced by the Applicant in the proceedings is simply not known (as is the case at the present time). 41 Accordingly, it seems to me to be that the Council's claim to costs thrown away, must inevitably be held to be simply premature because the proceedings remain on foot and the future course of the litigation, and more particularly the Applicant's ultimate position in the litigation, simply cannot be anticipated at the present time. 42 It may be that in the fullness of time, the Applicant will seek to rely upon the revised plans to the exclusion of the original plans. This decision may involve the Applicant in agreeing that the revised plans need to be re-notified publicly in view of the misdescription of the proposal as twice previously publicly notified. Such a decision may result in the Council finding that it has incurred unnecessary costs in preparing its case against this original proposal and incurring additional costs in respect of its assessment of the revised plans. 43 Then again, it is possible that the Applicant will pursue its appeal on the basis of the original proposal and not rely upon the revised plans. 44 Further speculation as to what might occur in the future is just that - mere speculation which does not provide any justifiable foundation for an order for costs thrown away. 45 In so concluding, I accept that an order for costs thrown away may be made in appropriate cases where it is not already known that costs have been thrown away but where it can be reasonably anticipated that costs will be thrown away. 46 The present position that has been reached in the current litigation does not support a finding that costs have already been thrown away or that that result can be reasonably anticipated. 47 In these circumstances, I do not think that it would be appropriate to make, at the present time, an order for costs thrown away upon the contingency that that ultimate result may occur in the litigation. 48 For all these reasons, I do not think that Council's claim for costs thrown away has been or can be substantiated. However, the principal basis for this conclusion is that the claim is simply premature based upon the existing state of facts concerning the Applicant's pending appeal which remains pending in the Court and has not been disposed of, one way or the other.

49 However, this conclusion does not mean that the Council will be prevented at some stage in the future course of the present proceedings from seeking an order for costs thrown away, if it seeks to assert such an entitlement.

In reviving or renewing its earlier claim to costs thrown away, the Council also relies upon the fact that the Applicant, at the final hearing, relied upon the Series B amendment plans in substitution for the original plans that accompanied its development application, but not in the same sense that it relies upon that conduct to support its claim to costs as formulated in par 1(b) of its Notice of Motion, because otherwise the separate costs claims that are formulated in pars 1(a) and (b) of the Council's Notice of Motion would involve a mere duplication or doubling up of the same costs.

An alternative construction of the Council's Motion is that pars 1(a) and (b) propound alternative bases for the same claim to the same costs thrown away. However, I propose to consider the Motion according to its terms ie as making two separate claims to costs, which I shall consider separately.

The Applicant's ultimate reliance upon the Series B amendment plans came about after the Applicant had succeeded, over the Council's strong opposition, in obtaining the Court's leave to rely upon the Series B amendment plans. That leave was granted for the reasons given in my judgment of 29 June 2001 reported in 115 LGERA 259. That leave was granted upon the following terms - (i) the Applicant shall serve upon the Council within 14 days the following additional documents to support the amended development application -

(a) shadow diagrams (b) landscape plan (c) amended statement of environmental effects;

(ii) the Applicant shall notify in writing within 14 days the Council and the Court of its election between the original plans and the amendment plans as referred to in the Applicant's Notice of Motion upon which it proceeds; (iii) the Applicant shall pay to the Council the sum of $5,000 as compensation for the Council's consideration of the amendment plans together with a sum sufficient to defray the costs incurred in the public notification pursuant to the Environmental Planning and Assessment Regulation 2000 of the amended development application.

These terms were duly satisfied and pursuant to term (ii) the Applicant on 13 July 2001 notified the Council and the Court of its election to rely upon the Series B amendment plans.

Once the Applicant had elected to rely upon the Series B amendment plans, its ultimate position in the litigation became known to the Council, but even at that point any claim by the Council to costs thrown away in respect of its case preparation based upon the original plans would still have been premature. This would inevitably be so, because at the time of the Applicant's election, the proceedings remained on foot and the future course of the case still remained unknown. For example, it may have been that the Council would grant development consent to the Series B amendment plans or that it would not oppose the appeal (especially since it had filed a holding appeal in the Court of Appeal seeking leave to appeal my decision granting the Applicant leave to rely upon the Series B amendment plans). In this respect, it is to be recalled that the Council's only determination of the Applicant's development application occurred shortly before the trial in December 2001 and that determination was in respect of the Series B amendment plans. In truth, it was only after the parties had litigated the proceedings at the final hearing upon the basis of the Applicant's reliance upon the Series B amendment plans that any claim by the Council for costs thrown away in the proceedings, could have ripened.

Firstly then, I shall consider the claim contained in para 1(a) of the Council's Notice of Motion. However, a fundamental conceptual difficulty is immediately encountered with the Council's claim to costs thrown away, as formulated in par 1(a) of its Notice of Motion (which is limited to costs thrown away by the Applicant's reliance upon the series A amendment plans) and it is simply this - in the proceedings, the Applicant simply did not rely upon the Series A amendment plans in preference to the original plans, and its only decision in the litigation to abandon the original plans was made by its election to rely upon the Series B amendment plans after it had obtained the Court's leave to rely upon those plans.

In view of these facts, and the further fact that the Series B amendment plans are not the same as the Series A amendment plans, there is simply no justification for regarding those two series of amendment plans as being indistinguishable from one another or as having the same status and function in the proceedings. Nor is it legitimate to relate the Applicant's election to rely upon the Series B amendment plans back to the emergence at an earlier interlocutory stage in the proceedings of the Series A amendment plans (in respect of which no such election was made).

In these circumstances, the Council's case in support of its claim in par 1(a) of its Notice of Motion has not established that the claimed costs were "thrown away or wasted" by virtue of the Applicant's reliance at the trial upon the Series B amendment plans.

Doubtless it was because of the difficulty just exposed that the Council's claim to costs in par 1(a) of its Notice of Motion refers not to the Applicant's reliance upon the Series B amendment plans (this is the subject of the separate costs claim formulated in par 1(b) of the Council's Notice of Motion) but to the Applicant's "reliance or purported reliance" upon the Series A amendment plans. However, this basis for the claimed costs has also not been established because, as I have earlier noted, the Series A amendment plans were never relevantly relied upon by the Applicant in the litigation in preference for the original plans. This fact is clearly demonstrated by my findings on the evidence in my first interlocutory judgment vacating the originally allocated hearing dates upon the Motion of the Council (which was consented to by the Applicant) - see 111 LGERA 308 at 314/315 - where the question whether the Applicant should be permitted to rely upon the revised plans was ultimately not adjudicated upon, but where the following difficulties for there ever being such an outcome were noted at 315: (vii) whether the Applicant would be allowed to rely upon the revised plans was dependent upon a number of contingencies -

(i) whether the earlier public notifications of the proposed development (being advertised development) were adjudged to be satisfactory compliance with the statutory requirements in view of the misdescription of the proposal as involving 254 residential apartments when in fact the true and correct number was 270 (or 269) cf Litevale Pty Ltd v Lismore City Council (1997) 96LGERA 91; (ii) if so, whether those earlier notifications would be sufficient compliance in the light of the revised plans; (iii) if so, whether the Court in hearing the proceedings would grant leave to the Applicant to rely upon the revised plans; and (iv) even if the Applicant were permitted at the hearing to rely upon the revised plans, whether there were fundamental difficulties confronting the Applicant inasmuch as only some of its expert evidence had addressed the revised plans whereas other parts of the expert evidence had addressed the original plans;

It is because of these self-evident difficulties which confronted the Applicant if it had sought to rely upon the Series A amendment plans (which it did not) that the Council's submission that the Applicant's "reliance or purported reliance" on those plans relevantly constituted misconduct in the litigation or relevantly caused costs incurred by the Council in preparing its case based upon the original development plans, to be thrown away or wasted, is not, in my judgment legally sustainable. In truth, it was the Council's response to the belated receipt of those amended plans just before the initially allocated hearing dates, which attributed to them an assumed validity or legitimacy, which they clearly lacked.

This conclusion does not gainsay the legitimacy of the Council's initiative to move the Court for the vacating of the original hearing dates, which it secured together with the costs of its Motion. But it is an altogether different proposition to assert (as the Council now does) that the Applicant's conduct caused the costs incurred by the Council in its case preparation based upon the original plans, to be wasted or thrown away. Clearly that was not the case, and as I have already held it was not until the Applicant had elected to rely at the trial upon the Series B amendment plans and the trial had been concluded on that basis, that even the possibility of the Council's claim to costs being thrown away or wasted, first arose.

For all the foregoing reasons, I hold that the Council's claim to costs as formulated in par 1(a) of its Notice of Motion has not been established.

This brings me next to consider the Council's costs claim as formulated in par 1(b) of its Notice of Motion, which also seeks the recovery of costs incurred by the Council in originally preparing its case based upon the original development plans.

The evidence supporting the Council's claim to an order for costs thrown away comprises two affidavits sworn by Rebecca Yates, a Solicitor in the employ of the Council's Solicitors. Her first affidavit (sworn 19 April 2002) deposes to the history of the litigation with particular emphasis upon the two interlocutory judgments that I have already extensively referred to in those reasons.

Her second affidavit (sworn 22 May 2002) establishes that work was undertaken by the Council's Solicitors in respect of the original plans that had accompanied the Applicant's development application, as detailed in par 6 of the affidavit, namely: - The work undertaken on the original plans included, but was not limited to: (a) Copying plans; (b) Reviewing plans; (c) Reviewing Council file; (d) Preparing briefs for experts; (e) Identifying issues; (f) Drafting Statement of Issues; (g) Communicating with experts; (h) Attendance on site with experts; (i) Meetings with Council; (j) Meetings with experts (k) Communicating with objectors; (l) Reviewing draft evidence of experts; (m) Settling expert evidence

The affidavit similarly establishes that work was undertaken by the Council's Solicitors in respect of the Series A amendment plans, as detailed in par 9 of the affidavit (involving much the same type of activity as was involved in the work undertaken in respect of the original plans).

Finally, the affidavit establishes that work had been undertaken by six experts who had been retained by the Council's Solicitors in respect of the original plans accompanying the Applicant's development application prior to the emergence in the proceedings of the Applicant's Series A amendment plans and Series B amendment plans and that these experts had submitted invoices to the Council for payment in respect of that work.

In my opinion, this evidence does not establish that costs incurred by the Council in preparing its case based upon the original plans accompanying the Applicant's development application were thrown away or wasted by virtue of the Applicant's reliance at the final hearing upon the Series B amendment plans in preference to, or in substitution for, the original plans. Nor in my judgment, is the Council's evidence capable of reasonably founding the inference that costs were relevantly thrown away or wasted. Indeed, when regard is had to the evidence adduced by the Applicant (namely (i) the Council's Statement of Issues originally filed in the proceedings in respect of the original development plans and the Council's Amended Statement of Issues filed in the proceedings in respect of the Series B amendment plans; and (ii) the various expert reports filed in the proceedings by the Council in respect of the original development plans and in respect of the Series B amendment plans), the overall evidence adduced in the case more strongly favours or supports an inference that costs were not thrown away or wasted because the work undertaken by the Council's Solicitors and by the retained experts in respect of the original plans was obviously utilised and employed in the case ultimately presented by the Council at the final hearing which addressed the Series B amendment plans. This is because of the obvious and considerable similarity of content that is yielded by a comparison of the contents of the different versions of the Council's Statement of Issues and of the different versions of the Council's experts' reports that were either filed and/or used in the proceedings.

This more compelling inference that is available on the evidence, is by no means a surprising outcome, bearing in mind the following conclusions at pars 139 to 142 of my judgment of 29 June 2001 granting the Applicant leave to rely upon the Series B amendment plans in substitution for the original plans: - 139 For all the foregoing reasons, I would now formally adopt my earlier stated construction of cl 55 and hold that scope and extent of the statutory power of amendment created by cl 55 of the Regulation permits a development application " to be changed or altered resulting in an alteration, variation or modification to the proposed development ". 140 Applying this construction of the amendment power created by cl 55 to the facts of the present case, I make the following ultimate findings -

(i) the amendment plans relevantly amend or vary the development application by substituting documents providing the required " sketch of the development "; and (ii) the amendment plans relevantly "change", in the sense of altering varying or modifying the proposed development as it was depicted in the original plans.

141 For completeness, I would add that if, contrary to what I have held, the true construction of the amendment power created by cl 55 of the Regulation be assumed to yield only a power of amendment circumscribed or delimited so as to permit only an amendment which did not convert the proposed development into something " substantially different " ( Manchil ) or " fundamentally different in character " ( City of Marion ), I would find that the " amendment plans ", though involving extensive amendments to the proposed development, did not result in a change to the essential character of the proposed development and did not result in an alteration to the proposed development so as to radically transform it (cf North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 433 at 438 referring to the statutory power of " modification " of development consent conferred by s 102 of the EP&A Act , since re-enacted as s 96 ). 142 Accordingly, for all the foregoing reasons, I hold that the amendment plans relevantly constitute an amendment of the Applicant's development application. It follows that I am of the opinion that the Court is vested with the power created by cl 55 of the Regulation to agree (or not to agree) with the Applicant's proposed amendments. In so concluding, I have generally adopted the Applicant's argument.

For all of the foregoing reasons, I would hold that the Council has not established its claim to costs as formulated in par 1(b) of its Notice of Motion.

Since the matter was specifically raised in the course of argument, I would emphasise that my conclusions that the Council has not established either of its claims to costs as formulated respectively in paras 1(a) and 1(b) of its Notice of Motion, are not conclusions based upon the lack of quantification of the claims. Rather, they are conclusions that the Council has not established that costs were relevantly thrown away or wasted in the proceedings by virtue of the Applicant relying upon the Series B amendment plans in substitution for the original development plans.

My conclusion that the Council has not established its claims to costs thrown away or wasted means that it is not necessary that I consider the second matter that the Council would have had to establish in order to be successful on its Notice of Motion, namely, assuming that the Applicant's conduct, in the proceedings, and in particular its reliance at the final hearing upon the Series B amendment plans, had caused costs incurred by the Council to be thrown away or wasted, that state of affairs relevantly constituted "exceptional circumstances" within the meaning of the Court's established practice in respect of costs in planning appeals.

However, since the matter was fully argued and for completeness, I propose to consider it, albeit briefly.

In my opinion, the Applicant's reliance at the trial upon the Series B amendment plans for which it had obtained the Court's express leave (granted upon terms) for the reasons given in my judgment of 29 June 2001 (115 LGERA 259) after it had fully complied with those terms, including the making of the payment of $5,000 to compensate the Council for its consideration of the amended plans, does not constitute "exceptional circumstances" within the meaning of the Court's practice relating to costs in planning appeals.

It is to be noted that in granting that leave, I did so, despite the Council's alternative submissions that the Court lacked the power to do so, or that assuming the Court possessed the requisite power, it would, in the exercise of its discretion, refuse to grant the leave sought.

In the result, I rejected both these principal arguments advanced by the Council, by holding that the Court possessed the requisite power (at pars 139 to 142 recited earlier in these reasons) and that in the exercise of its discretion, it was appropriate to grant the leave upon the terms I imposed (at pars 145 to 160).

As is apparent from pars 150 to 153 of my judgment granting leave, the amount of $5,000 to compensate the Council for its need to consider the series B amendment plans, payment of which amount was imposed as a term of the leave granted, did not directly involve any consideration of the Council's earlier failed claim to costs thrown away or of its possible revival.

Nonetheless, the imposition of that term reflected my evaluation of the need for the Council to be fairly compensated for having to consider the Series B amendment plans in circumstances where it had already previously considered the original development plans. But for that prior circumstance, there would have been no need, consequent upon granting leave to the Applicant, for the Council to be compensated for having to consider the Series B amendment plans.

Accordingly, it necessarily follows from my judgment granting leave to the Applicant to rely upon the Series B amendment plans and what transpired in accordance with that judgment, that what the Council asserts of the Applicant's conduct in the proceedings to be "exceptional circumstances" within the Court's practice relating to costs in planning appeals, is conduct that was expressly sanctioned by the leave of the Court granted upon terms which included compensating the Council for its need to consider the Series B amendment plans.

Any attempt to classify that conduct as constituting "exceptional circumstances" within the Court's established practice, appears in the circumstance of this case, to be particularly inapt and inappropriate.

For all the foregoing reasons, the Council has not established that in the circumstances of this case, the Applicant's reliance at the trial upon the Series B amendment plans constitutes "exceptional circumstances" within the practice of the Court. E. CONCLUSIONS AND ORDERS

For all the foregoing reasons, the Council's claims have not been substantiated and the Council's Notice of Motion must be dismissed.

Since the Council's claim has been successfully defended (although not upon the principal ground relied upon, (not only in defence of the claim but in justification of a claim to indemnity costs), namely the suggested absence of power in the Court to review its final orders made on 5 April 2002 in the proceedings) the Council must pay the Applicant's costs on the Motion conformably with the established practice in this Court that is referred to in Starray at par 55.

The Council pay the Applicant's costs on the Motion in the sum agreed, and or failing agreement, as assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

"whether the creation of the Family Court as a superior court of record carried with it the statutory power to reopen a final order after entry"): The Family Law Act 1975(Cth)

CITATION : Ervin Mahrer and Partners v Strathfield Council [2002] NSWLEC 97 APPLICANT: Ervin Mahrer and Partners PARTIES : RESPONDENT: Strathfield Council FILE NUMBER(S) : 10088 of 2000 CORAM: Bignold J KEY ISSUES: Practice and Procedure :- Application for costs made after perfecting of final orders made in class 1 proceedings-power of court to entertain claim-application of slip rule-Court's practice of not awarding costs in planning appeals Land and Environment Court Act 1979, s 69 LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 16, r 16 Supreme Court Rules, Pt 52A, r 48 Bailey v Marinoff (1971) 125 CLR 529; Birrigan Gargle Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 80 LGERA 389; British Natural Premium Provident Association v Bywater (1897) 2 Ch 531; DJL v Central Authority (2000) 201 CLR 226; CASES CITED: Fritz v Hobson (1880) 14 ChD 542; L Shaddock and Associates Pty Ltd v Parramatta City Council No 2 (1982) 151 CLR 590; Oshlack v Richmond River Council (1998) 193 CLR 72; Re Hodgkinson; Hodgkinson v Hodgkinson (1895) 2 Ch 190; Starray v Sydney City Council (2001) 112 LGERA 438; Wollong Pty Ltd v Shoalhaven City Council (No 2) (2002) NSWLEC 80 DATES OF HEARING: 29 May 2002 DATE OF JUDGMENT: 06/24/2002

The references in the Motion to various sets of plans are references to plans depicting the proposed development, the subject matter of the Applicant's development application, being plans that were considered at various interlocutory stages of the proceedings. At the final hearing, the series B plans were the only plans considered, after the Applicant had obtained leave to rely upon them (see (2001) 115LGERA 259) and had elected to rely upon them in substitution for the original plans accompanying the development application. It was only shortly before the final hearing that the Council determined the development application in its amended form with the original development application which was lodged with the Council on 19 December 1999 never having been determined by the Council - see pars 2 and 32 of my judgment of 5 April [2002] NSWLEC 47.

(2001) 112 LGERA 438

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