Hayward v Hornsby Shire Council (No 3)

Legislation Cited: Civil Procedure Act 2005 (NSW) ss 14, 27, 56, 57, 58, 60, 98, 183
Environmental Planning and Assessment Act 1979 (NSW)
Land and Environment Court Rules 2007 (NSW) rr 4.2, 4.3
Uniform Civil Procedure Rules 2005 (NSW) Pt 7 Div 9, rr 7.36, 13.4, 42.1, 42.7, 59.10, 59.9, Sch 1

Cases Cited: Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159
Hayward v Hornsby Shire Council [2024] NSWLEC 106
Hayward v Hornsby Shire Council [2025] NSWLEC 25
Hayward v Hornsby Shire Council (No 2) [2025] NSWLEC 37
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142
Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Mid-Coast Council v Gazecki (No 2) [2024] NSWLEC 103
Nadilo v Eagleton (2021) 250 LGERA 89; [2021] NSWCA 232
North Sydney Council v Wouters [2012] NSWLEC 94
Sassoon v Rose [2013] NSWCA 220
Verde Terra Pty Ltd v Central Coast Council (No 5) [2020] NSWLEC 48
Warringah Council v Ulrich [2012] NSWLEC 234
Wollongong City Council v Kudrynski (No 2) [2013] NSWLEC 55

Category: Costs

Parties: Brian Hayward (Applicant)
Hornsby Shire Council (Respondent)

Representation: Counsel:
B Hayward (in person) (Applicant)
M Cottom (solicitor) (Respondent)
Solicitors:
Nil (Applicant)
Local Government Legal (Respondent)

File Number(s): 2024/219601

Publication restriction: Nil

JUDGMENT on costs

1. The Respondent Hornsby Shire Council (Council) issued a Stop Work Order under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) on 4 December 2020 to the Applicant Mr Hayward in relation to residential premises in Arcadia (the order). Mr Hayward commenced judicial review proceedings challenging the order on 14 June 2024. The judicial review proceedings were dismissed on 16 April 2025 in Hayward v Hornsby Shire Council (No 2) [2025] NSWLEC 37 (Hayward No 2*)*. Costs were reserved. Mr Hayward’s notice of motion seeking leave to file the judicial review proceedings after the statutory timeframe of three months in r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) had expired was also considered and an order was made that the judicial review proceedings could be commenced out of time. The Council now seeks its costs of the proceedings and for the notice of motion on the basis it is the successful party. The making of a costs order is opposed by Mr Hayward who seeks an order that each party pay its own costs. At the hearing of the notice of motion to extend time and the substantive judicial review proceedings Mr Hayward was represented by his nominated agent Ms DeMarco his wife. Ms DeMarco also appeared as agent for Mr Hayward at the costs hearing.

2. Section 98 of the Civil Procedure Act 2005 (NSW) (CP Act) states in relation to costs that:

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act—

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

…

3. The applicable rule for costs in Class 4 matters as specified in Sch 1 of the UCPR is r 42.1, whereby the general rule is that if the Court is to make an order for costs, costs should follow the event.

4. Section 42.7 of the UCPR provides:

42.7 Interlocutory applications and reserved costs

(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including—

(a) costs that are reserved, and

(b) costs in respect of any such application or step in respect of which no order as to costs is made,

are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.

(2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.

5. The award of costs in civil proceedings is compensatory for the successful party in the absence of disentitling conduct, not punitive; Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 567; Wollongong City Council v Kudrynski (No 2) [2013] NSWLEC 55 at [20]; Warringah Council v Ulrich [2012] NSWLEC 234 at [98]-[99]; North Sydney Council v Wouters [2012] NSWLEC 94 at [26].

6. In the course of resolving an interlocutory application filed by the Council to dismiss the summons, the lengthy summons was reduced to one ground of review (ground 15):

The Applicant asserts that the giving of the Stop Work Order (the order) was unlawfully done so by the respondent as an existing Approval, namely Development Consent 1411/2000 (as modified) was in operation and he was authorised in accordance with the Environment Planning and Assessment Act 1979 to carry out the work subject of the order.

The applicant contends that the work being carried out on the property was work in accordance with the Development Consent.

The alleged contravention in the order cannot be made out nor does the respondent in providing reasons for the order establish what work if any that was being caried out that was outside of the scope of the existing consent.

The Applicant also contends that part 2 of the order falls outside the scope of a stop work order as allowed for in Schedule 5 of the Environmental Planning and Assessment Act 1979 as the matters set out in part 2 of the order are matters of compliance and do not fall within the circumstances of when a stop work order may be issued under the Act. The applicant contends that this further compounds the unlawful nature of the issuing of the order by the Respondent.

7. This ground was not upheld in Hayward No 2 for the reasons stated at [97]-[111].

8. In Hayward v Hornsby Shire Council [2025] NSWLEC 25 Mr Hayward’s notice of motion dated 10 March 2025 (NOM 006) seeking to vacate hearing dates was dismissed. A chronology of the various interlocutory proceedings which have occurred since Mr Hayward filed the summons in June 2024 was identified. As these events are relevant to the consideration of the parties’ arguments the table is set out again as follows:

| Date | Event | | 4 December 2020 | The order was issued by the Council. | | 14 June 2024 | Mr Hayward filed summons commencing judicial review of the validity of the order and seeking a declaration as to its invalidity and costs. | | 2 July 2024 | Ms DeMarco was sent an email from a Registrar noting that Mr Hayward had received numerous appointments with duty lawyers at the Court | | 5 July 2024 | Notice of motion (NOM) 002 was filed by Mr Hayward, requesting legal assistance pursuant to the Uniform Civil Procedure Rules 2005 (NSW) Pt 7 Div 9 (UCPR). | | 9 July 2024 | NOM 003 was filed by Mr Hayward, seeking an extension of time by which to commence proceedings pursuant to UCPR r 59.10. | | 12 July 2024 | NOM 002 was dismissed by Robson J. Robson J also ordered a timetable for preparation for hearing. Mr J Fan appeared as amicus for Mr Hayward. NOM 003 was stood over for hearing at the substantive proceedings. | | 24 July 2024 | NOM 004 was filed by Mr Hayward, seeking a statement of reasons for the order from the Council under UCPR r 59.9. | | 26 July 2024 | NOM 005 filed by the Council, seeking summary dismissal under UCPR r 13.4 and costs. | | 2 August 2024 | NOM 004 was dismissed by Pritchard J. | | 30 August 2024 | NOM 005 was part heard before Duggan J. Her Honour adjourned the hearing to 16 September 2024 and directed: • the Council to file and serve supplementary submissions identifying with particularity the basis upon which it is submitted that the summons be struck out; • Mr Hayward to file an application for leave to appoint an agent; • Mr Hayward to file and serve any written submissions by 13 September 2024. | | 16 September 2024 | NOM 005 was heard. Ms DeMarco was appointed as agent for Mr Hayward. Judgment was reserved. | | 17 October 2024 | Duggan J delivered judgment on NOM 005: Hayward v Hornsby Shire Council [2024] NSWLEC 106. Mr Hayward was given opportunity to re-plead one ground (paragraph 15) and ordered to file amended summons by 1 November 2024. | | 31 October 2024 | The due date for the amended summons was extended to 8 November 2024. | | 8 November 2024 | The amended summons was filed by Mr Hayward. | | 25 November 2024 | Notice of appointment of solicitor for Mr Hayward was filed by Mr Tudehope. | | 13 December 2024 | Directions hearing: The matter was fixed for hearing and a timetable for evidence and court books and summary of arguments for hearing set down. (The timeline was extended 13 February 2025). | | 21 January 2025 | Mr Tudehope filed a notice of ceasing to act. | | 30 January 2025 | Ms DeMarco sent an email to the Court Registry stating that Mr Hayward was seeking legal representation. | | 12 February 2025 | Notice of appointment of solicitor for Mr Hayward was filed by Mr Smith. | | 13 February 2025 | Directions hearing: The timeline for evidence and court books and summary of arguments adjusted. The court book, evidence book, and the Council’s submissions became due on 11 March 2025. Mr Smith filed a notice of intention of ceasing to act. | | 21 February 2025 | Mr Hayward sent without leave a lengthy email to Pain J’s Chambers and the Council. | | 3 March 2025 | Pre-hearing mention to clarify what orders were sought by Mr Hayward in 21 February 2025 lengthy email. Ms DeMarco was given leave to appear as agent on that occasion. | | 10 March 2025 | Mr Hayward filed NOM 006 to vacate hearing with a supporting affidavit. | | 14 March 2025 | Mr Smith filed a notice of ceasing to act for Mr Hayward. | | 14 March 2025 | Hearing of NOM 006 before Pain J. NOM dismissed. Hayward v Hornsby Shire Council (No 2) [2025] NSWLEC 37 |

Council’s submissions

9. The Council was successful in having the judicial review proceedings dismissed and submitted the usual costs rule applies so that Mr Hayward should pay its costs, including for the notice of motion to extend time. The Council relied on Nadilo v Eagleton (2021) 250 LGERA 89; [2021] NSWCA 232 at [6] to the effect that justice is not achieved if a successful party is left substantially out of pocket. Mr Hayward was made well aware by the Council before proceedings were commenced that costs would be sought, in its 9 May 2024 response to a letter before commencement of court action sent by Mr Hayward and Ms DeMarco. That Mr Hayward is self-represented does not displace the usual rule that costs follow the event; Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13]. Any hardship or inability to pay a costs order is not relevant; Kempsey Shire Council v Thrush (No 2*)* [2011] NSWLEC 130 at [11], Sassoon v Rose [2013] NSWCA 220 at [10].

10. Pursuant to r 42.7 of the UCPR, unless the Court otherwise orders, the costs of the motion seeking to extend time should be dealt with in the same way as general costs of the proceedings, namely as costs in the cause. Although successful in the motion Mr Hayward was not ultimately successful in the proceedings and should not receive the costs of the interlocutory application as when the substantive matter was considered it was not able to be sustained; His Eminence Metropolitan Petar, Diocesan B**ishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142 at [21]. Mr Hayward’s motion to extend time was a procedural step in these proceedings but was heard and determined together with the substantive proceedings. Clearly, the nature of this application was not discrete and does not warrant the exercise of the Court’s discretion to order otherwise; Mid-Coast Council v Gazecki (No 2) [2024] NSWLEC 103 at [34]-[35]; Verde Terra Pty Ltd v Central Coast Council (No 5) [2020] NSWLEC 48 at [21].

11. Mr Hayward has not identified any relevant disentitling conduct suggesting the Council should not get its costs paid.

Mr Hayward’s submissions

12. Mr Hayward seeks an order that each party pay their own costs of the proceedings. Costs are in the discretion of the Court under s 98 of the CP Act and the particular circumstances of the case must be considered. The Court has discretion to vary the usual costs rule. Mr Hayward was entitled to commence judicial review proceedings and acted reasonably in relying on advice of duty solicitors seen in numerous consultations at the Court. Mr Hayward considered he had a reasonable cause of action.

13. Mr Hayward submitted events leading up to the issue of the order in 2020 are relevant. In gaining entry to residential premises without contacting the owner about a complaint received the Council’s Code of Conduct and legislative requirements were not followed. The Council had legal options to conduct a search of the premises but did not follow the proper and ethical actions available to it.

14. Letters sent on 7 and 9 September 2020 to the General Manager of the Council identify Mr Hayward’s frustration at repeated breaches of the Council’s Code of Conduct. The complaints demonstrate a long history of abuse of power by the Council.

15. Mr Hayward should have been entitled to have all his evidence before the Court for review at a hearing but could not because his application to vacate the hearing dates was not granted.

16. The actions of the Council in 2020 were not a one-off or undertaken by mistake; the Council file of Mr Hayward is filled with many documents which are evidence of the Council repeatedly entering without the consent of Mr Hayward, biased actions in favour of the Council and against Mr Hayward, and clandestine actions seeking opportunity to prosecute Mr Hayward. These judicial review proceedings were important and a valid means for Mr Hayward to seek a “fair and transparent” review of the actions of the Council. These repeated actions explain why Mr Hayward was not afforded procedural fairness concerning the complaint received by Council on 6 August 2020, the unlawful entry on 7 August 2020 and why the order was written in a manner in which it was not possible for Mr Hayward to understand it.

17. Mr Hayward relied on the Australian Law Reform Commission’s publication Traditional Rights and Freedoms: Encroachments by Commonwealth Laws (ALRC 129, March 2016) at 14.11 concerning the definition of procedural fairness. Procedural fairness was not afforded to Mr Hayward by the Council or the Court. The trial judge who determined the Council’s notice of motion seeking to strike out Mr Hayward’s summons under UCPR r 13.4 did not act fairly to Mr Hayward and the various grounds of review in the summons that dealt with the Council’s failure to comply with the Code of Conduct were unfairly struck out. The grounds of review in the summons were not untenable and raised public interest matters of abuse of power by repeatedly entering residential premises without consent, conducting matters in a biased manner and failing to inform of allegations and complaints. (I note that ground 15 in the amended summons did not include such allegations).

18. Mr Hayward’s notice of motion for referral for legal assistance under UCPR Pt 7 Div 9 and application for reasons under UCPR r 59.9 was unfairly dismissed.

19. Mr Hayward acted reasonably on advice received from a duty solicitor at the Court in commencing judicial review proceedings.

20. The Class 4 practice note was not complied with as no alternative dispute resolution (ADR) process was agreed with by the Council and ADR was not required by the Court. Mr Hayward was denied his motion under UCPR Pt 7 Div 9, the hearing of his application under UCPR 13.4 was not fair, grounds in the summons were unfairly struck out, Mr Hayward was denied an adjournment of the hearing to file evidence, and Mr Hayward was forced to attend a two day hearing without any evidence being filed.

21. Mr Hayward followed the Class 4 practice note and in having his motions denied the Court failed Mr Hayward and did not enable the just, quick and cheap resolution of the matter. An application for legal assistance was filed early. Mr Hayward had good reason to expect that the Court’s procedure would provide him with orders pursuant to rr 4.3(a) and (b) of the Land and Environment Court Rules 2007 (NSW) (LEC Rules). If Mr Hayward’s UCPR r 59.9 notice of motion had not been refused and had the Council not withheld evidence from Mr Hayward the proceedings could have been dealt with far more efficiently. The legislation provides the reader with that expectation and Mr Hayward relied on that.

22. There was a lack of communication from the Council before the order was issued and fair treatment required that council officers meet with Mr Hayward. Mr Hayward wrote a letter before commencing action and invited the Council to revoke the order. The matter could have been avoided if the Council had acted reasonably at that time. By its actions the Council did not act in accordance with the NSW Department of Premier and Cabinet Model Litigant Policy for Civil Litigation (2016, Premier’s Memorandum 2016-03). (I note this policy applies to state agencies not local councils. The Council accepts it should act as a model litigant in any event).

23. That the proceedings were protracted was not a result of any actions of Mr Hayward who acted reasonably.

24. Mr Hayward’s success in relation to the application under UCPR r 59.10 shows that the Court has decided that the Council did not provide adequate support to Mr Hayward.

25. The guiding principles for the CP Act are to facilitate the just, quick and cheap resolution of disputes; see ss 56-58. The matter was not dealt with in accordance with those principles. Reliance was placed on various other sections of the CP Act namely ss 14, 27, 60, 98, 183.

26. Rule 4.2 of the LEC Rules provides that the Court may decide not to make an order for payment of costs against an unsuccessful applicant if it is satisfied that the proceedings have been brought in the public interest, as these were.

Consideration

27. In Hayward No 2 Mr Hayward’s notice of motion seeking leave to extend the time to commence judicial review proceedings was granted. Mr Hayward failed in the substantive proceedings. It is relevant to observe that Mr Hayward chose to commence these judicial review proceedings. The usual order in UCPR r 42.1 generally applies in such matters so that the Council as the successful party would obtain its costs in the absence of any disentitling conduct.

28. Several of the matters referred to by Mr Hayward are not relevant to consider in a costs determination which is generally informed by what occurred in the course of the substantive proceedings. That there was from Mr Hayward’s perspective a lengthy and unsatisfactory history leading up to the issuing of the order by the Council in 2020 is not material to the assessment of the conduct of the parties in the court case before me.

29. As part of considering the application for an extension of time to file the summons, events between the issue of the order and the commencement of these judicial review proceedings were considered. That the application to extend time was upheld does not provide any basis for the submission that the Court formed any adverse view about the behaviour of the Council in that period.

30. As identified in Hayward No 2 the processes required under the EPA Act for the issuing of a Stop Work Order were complied with, at [104]. The notice of intention to issue an order and the order identified that an appeal could be commenced within 28 days of the date of the order. Such an appeal would be a merits review in Class 1 of the Court’s jurisdiction. That avenue was not availed of by Mr Hayward. I make that observation not to criticise Mr Hayward but to provide context for the submissions made by Mr Hayward about his decision to commence these judicial review proceedings to which he says he is entitled. Regardless of that statement, Mr Hayward as an applicant commencing judicial review proceedings had the onus of proof on the civil standard for proving his case and was not able to discharge that onus.

31. That Mr Hayward believed he acted reasonably in commencing proceedings is not relevant to whether the Council should receive its costs as the successful party. The advice Mr Hayward believed he received from one or more duty solicitors under the volunteer pro bono service, provided by various firms at their discretion on a one-off basis to members of the public, is irrelevant to this costs application. If Mr Hayward is unhappy with that advice that is a matter to be taken up elsewhere.

32. Much of Mr Hayward’s submissions appeared to be intended to underpin an argument that he acted reasonably in commencing the proceedings and that the Council’s unreasonableness (in his view) justified that commencement. Because ground 15 did not require consideration of the events relied on to make that submission they are irrelevant.

33. The assertion that the judicial review proceedings were necessary to understand the order may explain what Mr Hayward hoped to achieve in commencing the proceedings. It does not reflect the purpose of these judicial review proceedings which were ultimately focussed on ground 15 as the basis for arguing that the order was legally defective.

34. That the proceedings were protracted is not a result of the Council filing a notice of motion pursuant to UCPR r 13.4 seeking to strike out the summons. As is clear from the table above in [8] four notices of motion were filed by Mr Hayward over several months. One notice of motion was filed by the Council in that period.

35. Dissatisfaction by Mr Hayward with the outcome of the various notices of motion identified in the table above in [8] is irrelevant to the consideration of costs. The expectation that an order would be made in favour of Mr Hayward under UCPR r 7.36 that he be provided with pro bono legal assistance has no basis in the UCPR. Matters relevant to the exercise of judicial discretion are referred to in r 7.36(2). The section does not indicate any likely outcome in the exercise of discretion by a judge. Mr Hayward was unsuccessful in seeking reasons under r 59.9. As to the application to vacate hearing dates the reasons for not vacating the dates are identified in Hayward v Hornsby Shire Council (No 2) [2025] NSWLEC 37.

36. The appropriate response if dissatisfied and believing there was error in any determination of a judge was to seek leave to appeal to the Court of Appeal. Further I do not accept there is any basis for the criticisms made by Mr Hayward of decisions of judges of the Court in those interlocutory proceedings**.**

37. No public interest factor is identified to justify the application of r 4.2 of the LEC Rules.

38. No disentitling conduct on the Council’s part has been established. None of the matters identified as being unsatisfactory conduct by the Council in Mr Hayward’s view leading up to the issue of the order have any bearing on the conduct of the proceedings. That the Council responded as it did to the letter sent before commencing action by Mr Hayward is not disentitling conduct. That Mr Hayward would have preferred the Council to have had a different more conciliatory response is not a basis to find that the Council acted unreasonably. That no ADR process was undertaken is not disentitling conduct on the Council’s part. I refused Mr Hayward’s late application for an order referring the matter to mediation in Hayward v Hornsby Shire Council [2025] NSWLEC 25 at [22].

39. The Council as the successful party should have its costs of these proceedings paid by Mr Hayward. In relation to the costs of the application to extend time under r 59.10, r 42.7 provides a proper basis for the order for costs to be costs in the cause for the reasons given by the Council. Accordingly Mr Hayward should pay those costs also.

Orders

40. In relation to the notice of motion to extend time filed on 9 July 2024, the Court orders:

41. The Applicant Mr Hayward is to pay the Council’s costs of the notice of motion to extend time as agreed or assessed.

42. In relation to the summons filed on 14 June 2024, the Court orders:

43. The Applicant Mr Hayward is to pay the Council’s costs of the summons as agreed or assessed.

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