Hopkins v Tamworth Regional Council

Category: Costs

Parties: Benjamin Hopkins (Applicant)
Tamworth Regional Council (Respondent 1)
Fleetwood Urban Pty Ltd (Respondent 2)

Representation: Counsel:
Mr B Hopkins (in person)
Mr C Koikas (Respondent 1)
Submitting appearance (Respondent 2)
Solicitors:
Urban Legal (Respondent 1)
Cowell Clarke (Respondent 2)

File Number(s): 2024/420506

JUDGMENT on costs

1. Mr Hopkins challenged the approval by Tamworth Regional Council (the Council) as the proponent and determining authority under Part 5 of the E**nvironmental P**lanning and A**ssessment Act 1979 (NSW) (EPA Act) of the Tamworth Regional Skywalk project in Oxley Park Tamworth. Mr Hopkins has represented himself throughout the proceedings. In Hopkins v Tamworth Regional Council [2025] NSWLEC 107, I dismissed the judicial review summons in a final judgment. I stood over the question of costs for further consideration in light of any submissions the parties would seek to make including an understanding that Mr Hopkins wished to submit that the litigation was public interest in nature.

2. Costs are compensatory not punitive, Latoudis v Casey 170 CLR 534 at 567; [1990] HCA 59. The usual rule for costs in Class 4 proceedings as provided by the Court’s register under the Civil Procedure Act 2005 (NSW) s 98 and the rules of court applying the U**niform C**ivil P**rocedure R**ules 2005 (NSW) r 42.1 (UCPR) in Class 4 proceedings is that costs follow the event. The event which informs costs is the delivery of the final judgment on the judicial review application which dismissed the summons commencing judicial review proceedings. Mr Hopkins as the unsuccessful party is liable for the Council’s costs on the ordinary basis (party-party) unless the Court considers another order ought to be made.

3. One basis on which the usual costs order might not be made is that proceedings were commenced in the public interest, a circumstance provided for in r 4.2(2) of the L**and and E**nvironment C**ourt Rules 2007 (NSW) (LEC Rules). Mr Hopkins has clarified in his written and oral submissions on costs that he does not wish to so argue.

4. The Applicant is therefore liable for costs on the ordinary basis of party-party costs unless another order is made. In his second written submissions on costs Mr Hopkins accepted that r 42.1 UCPR applies and submits that this should apply for the whole proceedings in opposing an order for indemnity costs.

5. The summons was filed in the Court by Mr Hopkins on 7 November 2024. The Council is seeking ordinary costs until 11 December 2024 and indemnity costs from 12 December 2024, the expiry date of the Council’s without prejudice Fir to save costs made in a letter to Mr Hopkins dated 27 November 2024. The outstanding issue is therefore whether Mr Hopkins should be ordered to pay costs on an indemnity basis from 12 December 2024, or some other later date.

6. Affidavits setting out steps in proceedings were provided by the Council and the following chronology identifies these steps:

On 7 November 2024, the Applicant filed a summons commencing judicial review proceedings concerning the decision of Tamworth Regional Council (Council), as the proponent and determining authority, to approve a project known as the Tamworth Regional Skywalk (Skywalk).

On 27 November 2024, the Council sent the Applicant a without prejudice offer save as to costs (first offer). The offer was not accepted by the Applicant.

On 10 December 2024 the Council filed a notice of motion seeking dismissal of the summons.

On 18 December 2024, the Applicant filed a notice of motion seeking urgent injunctive relief. The motion was heard and dismissed the following day on 19 December 2024. Costs of the motion were reserved and detailed reasons for its dismissal were handed down on 20 December 2024 which provided, inter alia, that there was no serious question to be tried nor did the balance of convenience favour the granting of the interim relief.

On 17 January 2025, the Council sent a further without prejudice letter save as to costs.

On 20 January 2025, the Applicant filed an amended Summons.

On 4 February 2025 the Applicant filed a notice of motion seeking to amend his summons. The amended summons attached to the motion was different to the version of the summons circulated on 20 January 2025.

On 7 February 2025, the Council sent a further without prejudice offer save as to costs, which was not accepted by the Applicant (second offer).

On 7 February 2025 matter listed for directions.

On 21 March 2025, the Council sent a letter to the Applicant concerning the potential consequences of the earlier without prejudice offers having been rejected.

On 21 March 2025 directions hearing.

On 1 April 2025 the Applicant filed a further amended summons.

On 4 April 2025, the Court granted leave to the Applicant to rely on the amended summons dated 1 April 2025. The Council withdrew its motion seeking dismissal.

On 23 May 2025 the Council filed its written submissions to be relied on at the final hearing.

On 29 May 2025, the Council made a further without prejudice offer save as to costs, (third offer) which was also not accepted by the Applicant.

On 5 June 2025 the parties appeared at the hearing. The Applicant sought an adjournment, which the Court granted and reserved the question of costs.

On 12 June 2025 the parties appeared at the adjourned hearing where the Applicant did not press Ground 1 of his amended summons dated 1 April 2025.

On 14 July 2025, the Applicant filed a further notice of motion seeking a referral for legal assistance through the Court’s Pro Bono Panel and for leave to revive Ground 1 of his amended summons dated 1 April 2025.

On 18 July 2025, the parties appeared before Justice Robson for the return of the 14 July 2025 motion. His Honour referred the matter to me, the trial judge.

On 25 July 2025, the Applicant filed an amended notice of motion and supporting affidavit, seeking to re-open the proceedings after judgment had been reserved on 28 June 2025.

On 8 August 2025, the amended notice of motion was listed before me. I dismissed the Applicant’s amended notice of motion dated 25 July 2025 reserving the question of costs.

On 26 September 2025, I refused the Applicant’s request to reopen his case. I also dismissed the Applicant’s Amended Summons dated 1 April 2025. Final judgment was delivered on 16 December 2025.

Council’s submissions on indemnity costs

7. The Applicant has failed in the litigation at every turn, has rejected three reasonable offers to compromise the proceedings and has otherwise carried on the litigation in an inefficient manner. Indemnity costs are warranted from 12 December 2025 (first offer) due to extensive interlocutory proceedings in which it had to engage. Alternatively indemnity costs are warranted from either the date of the second or third offers made.

The First Offer

8. The first offer was made 20 days after the Applicant had filed his summons dated 7 November 2024. It represented a real and genuine compromise as the Council invited the Applicant to discontinue the proceedings and expected to receive instructions to forego its entitlement to seek costs incurred to that point.

9. The Applicant unreasonably refused the first offer. The reasonableness of the Applicant’s response must be assessed at the time the first offer was made, not with the benefit of hindsight. The following factors are relevant to whether rejection of an offer was unreasonable, drawing on Miwa Pty Ltd v Siantan Properties Pty Ltd [2010] NSWSC 1203 (see par 25):

(a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree’s prospects of success, assessed at the date of the offer; (e) the clarity with which the terms of the offer were expressed; and (f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree’s rejecting it.

10. Five factors, taken together, demonstrate that the Applicant’s rejection of the first offer was unreasonable:

(a) The first offer was made at an early stage of proceedings, when the Applicant’s case was plainly defective and the Council acted to ensure the just, quick and cheap resolution of the proceedings by providing the first offer. (b) The first offer remained open for 14 days, allowing a reasonable period for acceptance. (c) The Council agreed not to seek its costs to date should the Applicant discontinue proceedings, which was an offer of substantial value, considering the issues with the Applicant’s summons. (d) As at 27 November 2024, the Applicant lacked any prospect of success. This was clearly set out to the Applicant in the first offer. The first offer clearly identified the fundamental defects in the Applicant’s summons, including that there was no reasonable cause of action identified, the grounds extended beyond judicial review, there was deficient particularisation and a conflation of policy and administrative decisions. (e) The terms of the first offer were unambiguous, plainly expressed, and clearly identified the deficiencies that made continuation of the proceedings by the Applicant untenable based on the summons of 7 November 2024.

11. For these reasons, the Council submits that the Applicant’s rejection of the first offer was unreasonable. As the Council was entirely successful in defending the proceedings, the Court would order that the Applicant pay the Council’s costs on an indemnity basis from 12 December 2024.

The Second Offer

12. On 4 February 2025 the Applicant filed a notice of motion seeking leave to amend the 7 November 2024 summons. Shortly after, on 7 February 2025, the Council made a further without prejudice offer save as to costs, which expired on 20 March 2025 (the second offer).

13. The second offer represented a real and genuine compromise, and the Applicant’s rejection of it was similarly unreasonable for the following reasons:

14. By 7 February 2025, the proceedings had progressed through the injunction application on 19 December 2024, two directions hearings, and the service of multiple versions of the summons, including the version of the proposed summons attached to the 4 February 2025 notice of motion. The second offer put the Applicant on notice of the deficiencies in his proposed amended summons.

15. The second offer remained open for more than 40 days, until 20 March 2025, allowing ample time for the Applicant to consider the detailed defects raised, and to discontinue before the 21 March 2025 directions hearing.

16. The Council agreed to limit its costs claim to those incurred up to the injunction application which was decided on 20 December 2024, despite having incurred significant additional costs responding to multiple defective versions of the summons that were received in the lead up to the 4 February 2025 version of the summons. This represented a substantial concession.

17. As set out in the letter of the second offer, the proposed amended summons dated 4 February 2025 was defective in numerous respects. The Applicant had no reasonable prospects of success.

18. The second offer helpfully identified the defects in the proposed amended summons, the potential consequences if the litigation failed, the terms of discontinuance that were acceptable to the Council, and the significant discount on costs already incurred by the Council.

19. The second offer expressly stated that if the Applicant did not discontinue, the Council would expect to receive instructions to proceed with its summary dismissal motion and seek all costs incurred in defending the proceedings, putting the Applicant on clear notice of the Council’s intention and the potential costs consequences that might follow. A subsequent letter to the Applicant dated 21 March 2025 confirming that the expiry of the offer also expressly put the Applicant on notice that the Council would proceed with seeking all costs incurred in defending the proceedings.

20. For the above reasons, the Applicant’s rejection of the second offer was plainly unreasonable and owing to the outcome of the proceedings, the Court would not limit indemnity costs to the period between the expiry of the first offer and the date upon which the Applicant filed a motion to amend its summons.

The Third Offer

15. A further offer to compromise the proceedings was made on 29 May 2025 a week before the 5 June 2025 listing for the hearing, which was ultimately adjourned until 12 June 2025, and so was issued 2 weeks before the commencement of the hearing (the third Offer). Relevantly, this offer was made after the Applicant obtained leave on 4 April 2025 to rely on the amended summons filed 1 April 2025.

16. The third offer was made in accordance with the principles in Calderbank v Calderbank (1975) 3 All ER 333 (Calderbank) and like the earlier two offers represented a real and genuine compromise. The Applicant’s rejection of it was unreasonable because:

17. The third offer was made on 29 May 2025, days before the pre-trial mention on 2 June 2025 and the hearing listed for 5 June 2025 and adjourned until 12 June 2025. By this point, the Applicant had the benefit of the First Respondent’s comprehensive written submissions (served on 23 May 2025) and full awareness of the Council’s position.

18. The offer that each party bears its own costs was a significant compromise given the First Respondent had incurred legal fees totalling approximately $116,376 by that date, including disbursements.

19. By the date of the third offer, the Applicant had been provided with the Council’s detailed written submissions clearly identifying the factual and legal defects in his claim. The Applicant’s prospects were, at best, minimal in light of the material served.

20. The offer terms were unambiguous and consequences of rejection and the rationale for the offer were clearly explained.

21. The third offer expressly stated that if the Applicant did not discontinue proceedings and Council was successful, it would seek indemnity costs from 29 May 2025. The Applicant was therefore on clear notice.

Mr Hopkins

17. Mr Hopkins submitted that as a Litigant in Person allowances must be made for the challenges he had in running these judicial review proceedings given his lack of expertise citing Quach v Health Care Complaints Commission [2015] NSWCA 311 at [9]-[10]. He made substantial efforts to obtain legal assistance (after proceedings were commenced) from the Environmental Defenders Office in November 2024, the NSWLEC duty lawyer scheme and sought pro bono assistance from others but was not successful. Emails attached to his affidavit dated 28 November 2025 demonstrated his efforts to get legal advice.

18. The litigation should be considered in stages with the interlocutory injunction application in December 2024 stage 1. The second stage was the amendment of the summons (on multiple occasions) between 19 December 2024 and 4 April 2025 ultimately resulting in a further amended summons which was considered at the final hearing. Once that summons was filed the Council did not pursue their strike out application demonstrating that the further amended summons identified a cause of action with reasonable prospects of success. The first offer (November 24) and second offer (February 2025) letters were sent in these first and second periods and should be considered together. Mr Hopkins was justified in not accepting these offers given the successful amendment of the summons which enabled Mr Hopkins to argue his case at hearing. Mr Hopkins corresponded in reasonable terms with the Council on numerous occasions in relation to his case.

19. The hearing preparation and hearing in June 2025 was a third step, during which the third offer to settle dated 29 May 2025 was made in reliance on Calderbank*.* At that stage Mr Hopkins had received the Council’s submissions. He did not accept all these were correct and considered that he should proceed to hearing. The time to respond was insufficient as the hearing was very close and he had not had the Council’s submissions for many days and was heavily involved in his own case preparation.

20. No basis has been established by the Council for payment of indemnity costs.

Finding on indemnity costs

21. The principles in *Miwa Pty Ltd v Siantan Properties Pty Ltd (*No 2) [2011] NSWCA 344 (Miwa) at [9]-[10] were relied on by the Council as the Court of Appeal was there considering offers of compromise. Those principles include that there is no presumption that an offeree who does not accept an offer and does not obtain a judgment more favourable than the offer will necessarily pay indemnity costs from the date of the offer (various cases cited in Miwa at [8]). The questions to ask identified in Miwa are (1) was there a genuine offer of compromise, (2) was the offeree unreasonable in not accepting it. In Miwa at [6] the benefits of encouraging settlement in litigation are identified in terms of avoided costs and the uncertainty of litigation. The Council bears the onus of establishing that indemnity costs are warranted.

22. I am cognisant in my decision on costs that Mr Hopkins chose to commence reasonably complex judicial review proceedings. He made efforts to obtain legal representation after proceedings were commenced but was not successful in doing so. It is clear from the chronology above of steps in the litigation that the Council has incurred additional costs in the proceedings above what could be expected if Mr Hopkins had had competent legal representation. A number of attempts were made to have a summons filed which did disclose an arguable case, which occurred on 4 April 2025 when Mr Hopkins was given leave to rely on a further amended summons several months after proceedings were commenced in November 2024. The Council will get all these costs on a party-party basis.

23. Turning to the offers relied on by the Council in their application for indemnity costs, any offer must involve a real and genuine element of compromise. Unreasonable refusal requires consideration of timing with assessment at the time of the offer, not with the benefit of hindsight resulting from a known outcome, various factors identified in [10] referred to above in the Council submissions in other words the stage of proceedings offer was made, extent of compromise offered, prospects of success of offeree, clarity of terms of offer, whether indemnity costs were foreshadowed.

24. The first and second offers can be considered together given the early stages of the proceedings these were made at. The offers made by the Council are clear in their terms in asserting that the case as disclosed in the summons did not have reasonable prospects of success with detail provided by the Council for why that was the case. The first and second letters of offer included a reasonable timeline for acceptance and contained genuine offers of compromise given the offer of the Council to forego substantial costs. No explicit reference to claiming indemnity costs is made. Reference is made to claiming costs in the first offer. The second letter of offer refers to claiming all costs, not literally indemnity costs which reference may or may not have been obvious to Mr Hopkins in relation to what was intended. These offers were reasonable.

25. Was Mr Hopkins unreasonable in not accepting the two offers? As he submitted he ultimately, after several amendments of the summons, produced a version which was accepted by the Council to disclose a cause of action in that the Council did not press its notice of motion for dismissal on 4 April 2025. On that day Mr Hopkins was given leave to rely on a further amended summons which was the subject of the final hearing on 5 June 2024. The original summons filed by Mr Hopkins did not disclose a reasonable cause of action, as found in the interlocutory judgment determination on 19 December 2024. As I understand Mr Hopkins’ written submissions opposing indemnity costs, he submits that the multiple amendments made to the pleadings arose because of difficulty accessing the Council’s decision-making process for the determination of the Review of Environmental Factors as this was not made public for some time.

26. Weighing up the progress of the proceedings as a whole at the points in time when the first and second offers were made, I do not consider Mr Hopkins was unreasonable not to accept the first and second offers from the Council so that indemnity costs will not be ordered from those dates.

27. Offer three made on 29 May 2025 and expressed as a Calderbank offer was close to the hearing listed for 5 June 2025 which was postponed to 12 June 2025 on Mr Hopkins’ application. The offer was clear in explaining what the Council’s considered were the deficiencies in Mr Hopkins’ case and offered a very reasonable compromise given the Councill offered to forego its considerable legal costs at a very late stage in the proceedings. The Council had provided its written submissions to Mr Hopkins so that he was fully appraised of the Council’s case at hearing. The letter referred expressly to being used on an indemnity costs basis. The timing of the offer was sufficient for Mr Hopkins to consider it particularly as, if accepted, an expensive hearing would have been avoided. The offer was reasonable.

28. Was Mr Hopkins’ refusal unreasonable which relates in part to whether he should have been persuaded based on the Council’s submissions to consider he did not have reasonable prospects of success. He stated that he considered he had reasonable arguments. Mr Hopkins did not have the benefit of legal advice in making that assessment but had the benefit of the Council’s complete submissions at hearing. On balance I do consider his refusal of the third offer was unreasonable and the Council should have indemnity costs payable from 29 May 2025.

29. I will discuss with the parties the terms of the final order on costs and disposition of costs of the costs application before finalising any orders.

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Amendments

09 February 2026

Cover sheet - corrected jurisdiction