Gee v Council of the City of Sydney and Ors

Finding 11 These Class 4 proceedings concern a challenge to the validity of a council's development consent, a common form of litigation undertaken in this Court. Such cases generally involve the joinder of the relevant council and the beneficiary of the development consent. As is common the substantive issues in this case concerned whether the Council had correctly decided to grant consent. The Court has wide discretion to award costs under s 69 of the Land and Environment Court Act 1979. Any such exercise of discretion must be undertaken judicially. The general approach to costs in Class 4 proceedings is that an unsuccessful party should pay the costs of the successful party. That has occurred in relation to the costs of the Council by agreement between the parties. It does not necessarily follow that the Second Respondents should get their costs in circumstances where they did not actively participate in the hearing. They are not a successful party in the sense that they have participated in proceedings where their arguments won. 12 The only issue which was directly relevant to the Second Respondents' actions and was a matter about which they could have had relevant evidence and submissions, was the exercise of the Court's discretion in the event that the Applicant successfully argued the development consent was invalid. As a submitting appearance was filed by the Second Respondents before the hearing and no evidence was filed on this issue there is no discrete area of legal work undertaken in relation to which costs can be awarded in my view. 13 I agree with the Applicant's second and third arguments that there is no reason for the Second Respondents to have their costs in the circumstances before me. In my view, awarding costs would be rewarding duplication of work by multiple respondents, which is not a practice this Court wishes to encourage. While it reflects extensive practice in this Court that both a council and the beneficiary of a consent will be joined in Class 4 proceedings challenging a consent, it should not be expected that both parties will receive their costs in full or in part where the costs they incur are a duplication of effort, as is arguably the case here. 14 It is not self evident that the involvement of the Second Respondents' lawyers in the litigation was necessary to ensure the matter proceeded in a timely fashion and that the Council adequately covered all the relevant issues. Even if the involvement of the Second Respondents' lawyers at some level was necessary to achieve these aims, these can be achieved by means other than being an active party in the litigation. It is not self evident that costs should be payable by an unsuccessful applicant for work which duplicates work undertaken by another respondent who actually participates in the final hearing. In making these comments I am not adopting the fourth argument of the Applicant that there was disentitling conduct on the Second Respondents' part, however. 15 While it may well be true that no suggestion was made to the Second Respondents by any judge or by the Applicant that they could not assume that their costs would be paid that is not a reason to award them now. To this extent I am departing from my earlier decision in Cobden-Jones at [23]. In that case I took into account as relevant factors in awarding costs that the applicants commenced proceedings against more than one respondent and that there was no indication that the applicants objected at the time to the fact that the respondents had separate representation. I am aware that in case management of similar Class 4 matters such as this the presiding judge is now indicating to multiple respondents that they cannot assume that all respondents' costs will be paid where there is possible duplication of effort.

16 I do consider that prudent applicants should give consideration to the issue of costs where multiple respondents are involved and seek to clarify the costs position as they see it early in the proceedings once all relevant issues have been clarified. The Second Respondents submitted that the Applicant could have done more to protect herself in relation to costs by writing early in the proceedings suggesting that: In view of the prayer for relief sought against you, and the Points of Claim [and/or your Points of Defence], you are invited to enter a submitting appearance [or "a submitting appearance save as to your defence of discretion"]. If you continue to insist on separate representation ["save as to your defence of discretion"], the Applicant will rely on this written notice in any application made by you for your costs.

This failure is not a sufficient reason to award costs in favour of the Second Respondents now but I raise the submission here to highlight that applicants can give early consideration to costs issues when undertaking litigation against multiple respondents, as indeed should those multiple respondents. 17 While the Applicant has successfully opposed the Notice of Motion I consider that my reasons for judgment are based on a different approach to that taken by me previously. Given that the Second Respondents sought to rely on that approach it is appropriate that each party pay its own costs of the motion. Orders 18 The Court makes the following orders:

1. That the Second Respondents' Notice of Motion dated 30 November 2004 be dismissed.
2. That each party pay its costs of the Notice of Motion dated 30 November 2004.

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