Fairfield City Council v Holroyd City Council and Anor

Land and Environment Court (NSW)|1999-06-11|Before: Cowdroy J, Mr J, Toohey J, Jacobs J

Land and Environment Court of New South Wales CITATION: Fairfield City Council v Holroyd City Council and Anor [1999] NSWLEC 232

PARTIES APPLICANT Fairfield City Council

RESPONDENT Holroyd City Council and Anor

LEGISLATION CITED: Land and Environment Court Act 1979 s 69(2)

EX TEMPORE JUDGMENT DATE: 09/08/1999

APPLICANT Mr A Thompson (Barrister)

SOLICITORS Kencalo & Ritchie

FIRST RESPONDENT Mr J Ayling (Barrister)

SECOND RESPONDENT Mr D Wilson (Barrister)

SOLICITORS Morgan Lewis Alter

JUDGMENT: IN THE LAND AND MATTER No. 40240 of 1998 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 8/9/99

Fairfield City Council Applicant v Holroyd City Council First Respondent Nasser Pty Limited Second Respondent JUDGMENT

Judgment in this application was delivered on 11 June 1999. The question of costs had not been argued by the parties and the Court indicated that it would order the first respondent to pay the costs of the applicant and the second respondent, unless an application was made within fourteen days of the date thereof. By amended notice of motion Holroyd City Council seeks to argue the question of costs.

There are two issues raised in the proceedings. First, whether the successful applicant, namely Fairfield City Council ("the applicant") should be entitled to costs of the proceedings and if so from which respondent. Secondly whether there should be any contribution between the respondents. Repeatedly principles have been established to guide courts in the exercise of the judicial discretion when awarding costs. Section 69(2) of the Land and Environment Court Act gives the Court a wide discretion as to costs and it is accepted that the only limitation upon such discretion is that such power be exercised judicially.

In Hughes v Western Australian Cricket Association Incorporated and Others (1986) ATPR 40-748 several principles are stated for the guidance of courts in assessing costs. The principles are as follows: Firstly, ordinarily costs follow the event. A successful litigant is entitled to receive his costs in the absence of special circumstances justifying some other order: Ritter v Godfrey (1920) 2KB 47.

Secondly, when a litigant has succeeded only upon a portion of his claim the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed: Forster v Farquahar (1893) 1QB 564.

Thirdly, a successful party who has failed on certain issues may not only be deprived of his costs of those issues but maybe ordered as well to pay the other party's costs relating to them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law: Cretazzo v Lombardi (1975) 13 S.A.S.R. 4 at 12.

In Hughes , Toohey J referred to the warning provided in Crettazzo by Jacobs J. In the latter report his Honour said at 16: Having said that I would wish to sound a note of cautious disapproval of applications which are being made with increasing frequency to apportion costs according only to the success or failure of one party or the other on various issues of fact or law which arise in the course of a trial.

Later on the same page Jacobs J said: But trials occur daily in which the party who in the end is wholly or substantially successful nevertheless fails along the way on particular issues of fact or of law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues however doubtful which might be material to the decision of the case.

There have been numerous pronouncements to the effect that a party should not be deprived of its costs in the absence of misconduct or of a finding that because the issue had such a remote prospect of success it should never have been litigated; see AWA Limited v Daniels (unreported, Supreme Court of NSW Commercial Division 17 September 1992); Melouhee Pty Limited receiver and manager appointed v Steanbohm (unreported, Waddell CJ, Equity Division of the Supreme Court of New South Wales, 6 February 1992 ). Fountain Selected Meats Pty Limited v International Produce Merchants Pty Limited (1988) ALR 397 at 401.

Put another way, it is said that a successful party should be deprived of costs only where the conduct of that party was such as to unreasonably prolong the proceedings: see Latoudis v Casey (1990) 170 CLR 534 at p 565; Re Elgindata Ltd No 2 (1992) 1WLR 1207 at 1214-1217; Cummings v Lewis (1993) 113 ALR 285.

In these proceedings the applicant challenged the development consent granted by Holroyd City Council on several grounds. On the one hand it alleged the development was prohibited because it was inconsistent with the objectives of the zone. That challenge failed. It alleged that the development was prohibited because it could not be characterised as a medical centre. That challenge failed. It alleged that the decision to grant consent was unreasonable because it was inconsistent with the result of a similar application determined at the same meeting. That application failed. It alleged that the decision was invalid because no delegation to the general manager had been made for him to formulate the conditions. That challenge failed. It alleged that the decision was invalid because it constituted an attempt to formulate conditions when the council was functus officio. That application failed. Finally it alleged that the decision was invalid because certain conditions were not final in form. That challenge succeeded.

Accordingly the majority of matters for which the applicant argued that the consent was invalid, failed. Nevertheless, it succeeded in its application for a declaration that the consent was invalid. Prima facie, therefore the applicant would be entitled to an order that its costs be paid.

The question is whether in this case any apportionment should be allowed. The authorities have made it clear that costs should only be so apportioned in the event that the issues which failed had such a remote prospect of success they should never have been litigated.

There was in effect only two unsuccessful issues which could be so described namely, the issue concerning the delegation to the general manager and the issue concerning the formulation of conditions when the council was functus officio. Those two issues were essentially devoid of merit. It could not be said that any other issue fell into that category.

Accordingly, it is appropriate that the applicant be compensated by an award of costs in respect of those matters upon which it succeeded or in respect of which the issues were not ones which could be classified as hopeless from the outset. In the circumstances, the Court considers that the applicant is entitled to receive costs assessed at eighty per cent of its costs. An order will be made against the first respondent that it pay eighty per cent of costs of the applicant.

The next question concerns the position of the second respondent. In this respect the question arises as to whether there is justification for the Court making an order in the nature of a Bullock order or a Sanderson order. Those principles derive from the decisions in Bullock v London and General Omnibus Company (1907) 1KB 264 and in Sanderson v Blyth Theatre Company (1903) 2KB 533. The effect of a Bullock or Sanderson order has been discussed by the Chief Justice of the Supreme Court of the Northern Territory in Lackistein v Jones and Others No 2 (1988) 93FLR 442 at 443.

To qualify for a Bullock order the second respondent must in substance show that it has been successful in the proceedings. The second respondent submits that it never should have been joined into the proceedings by the council because no relief was sought against it. In that respect it has referred the Court to the decision of Burwood Council v PD Mayo Pty Limited and Others (1997) 96 LGERA 268 of the Supreme Court of New South Wales Court of Appeal.

Having been joined into the proceedings the second respondent took an active role, as it had a vital interest in the outcome of the proceedings. The second respondent could have filed a submitting appearance leaving it to the first respondent to raise all necessary defences. Instead it fought the case and orders were made directly contrary to its interests. It could not be regarded as a successful respondent. The appropriate order is that the second respondent should pay its own costs of the proceedings but not be ordered to pay any costs of the applicant.

That the Holroyd City Council pay 80 % of the costs of the applicant of the proceedings namely the Council of the City of Fairfield, including the costs of this application.
No order be made in respect of the costs of the second respondent of the proceedings nor the costs of this motion.
The exhibits may be returned.
The above orders are not to effect the orders made by the Court for costs on 21 July 1999.

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At a glance

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Judgment (32 paragraphs)

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Cases Cited (3)

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