Maxwell and Anor v Warringah Shire Council and Anor

2 In order to give effect to that decision, a copy of the precise terms of the orders to which I had proposed to seek the Chief Judge's concurrence was provided to the parties just prior to Christmas 2004. These were provided to give specific detail in amplification of my earlier decision and to enable the parties to make submissions to the Chief Judge. 3 In response to those proposed orders, the parties made submissions to the Chief Judge as part of the concurrence process pursuant to s 69(8) of the Land and Environment Court Act 1979 (the Court Act). 4 In the first instance, those submissions were also provided to me to read. Having done so, it seemed to me that the nature of those submissions significantly misconceived the role of the Chief Judge pursuant to s 69(8) of the Court Act. 5 His role essentially, as I understand it and has been applied consistently by him, is a "yes or no" role - which is necessarily implied from the terms of s 69(8) referring to his concurrence in the making of proposed orders. 6 His role does not constitute one, as I apprehend it, where the concurrence role can be used either as an informal substitution for an appeal pursuant s 56A of the Court Act if a party considers a commissioner's discretion has significantly miscarried nor does it provide an opportunity for the Chief Judge to alter or amend the orders proposed in proceedings. 7 As I wished to ensure that the matter proceeds expeditiously, on 4 February the matter was mentioned before me. During the course of this mention, I provided the parties with possible framework of orders which subsumed not only those orders which arose out of my decision of 2 November 2004 but also the earlier consent orders concerning costs which the applicants had agreed were appropriate to be met by them. 8 The new form of the orders which I provided to the parties was based on orders for payment of nominated sums to each of the first and second respondents for three reasons which were set out in the proposed orders. 9 The first were costs thrown away by adjournment of the proceedings on 8 September 2004; the second for costs thrown away by my granting on 2 November 2004 leave to amend the application significantly and the third for preparation for and the hearing of 2 November 2004. 10 The first of those necessarily must be accompanied by vacation of the consent orders of 8 September. 11 The parties have now agreed to that structure of orders as a means of resolution of the costs issues. On 4 February, I indicated to the parties that it seemed to me that there were three ways forward. These were: 12 First, that I might nominate the amounts for orders two and three; 13 Second, that I provide to the parties for their guidance what I considered to be an appropriate range within which settlement might be; or 14 Finally, the parties themselves might simply reach agreement on the numbers to be completed. 15 From the further submissions from all the parties, they prefer the first course of action and that I determine the numbers to be filled in initial proposed orders 2 and 3, the parties being unable to reach agreement on the resulting numbers themselves 16 I am prepared to do so this morning and to provide short reasons why I have reach my conclusions.

17 The reasons are, of necessity, of somewhat crude measure. The evidence as at today in the proceedings will stand significantly over half a metre in height and I have not undertaken a detailed review of all of the expert evidence which would be rendered actually or potentially irrelevant by virtue of the very significant amendments to the application which I permitted on 2 November 2004. 18 It necessarily follows that the determinations have been made from my best recollection of the course that has been followed by the proceedings together with a brief examination of my bench notes as to what has taken place. 19 The amounts that were suggested ought to be paid to each respondents are that the first respondent should have an order in its favour of a little over $15,000.00 and second respondent an order approaching $35,000.00. 20 I have considered each of those separately. 21 The amounts which are proposed by the council are set out in the schedule of costs filed on its behalf on 29 October 2004 and are with respect to the first and second elements and also include on my calculation, some allowance for the hearing on 2 November. The matters that are there set out are set out with respect to the wasted costs of the expert witnesses in element A to this schedule of costs. 22 For the costs rendered irrelevant by virtue of granting leave to amend, the sum of $11,070.00 is sought. This is for a variety of independent experts and some time of a council officer and the time of the council's solicitor. I have been through those and I see no reason from the face of the document or my notes of the hearings to consider any of these are irrelevant or improbable. 23 Similar positions apply with respect to the costs that are dealt with in element C of the schedule with costs which totalled $4000.00. Finally, element C included an allowance for two hours for the hearing on 2 November which I think should comprise, in totality, four hours for that day. 24 Thus, the first respondent seeks an order making a totalling of $15,570.00. 25 In response to that, Mr Cole, solicitor for the applicants, does not, as I apprehended his submissions, seek to cavil with the total but suggests that, consistently approach which he says was followed by the Chief Judge, in the Harb v Wyong Shire Council (No 2) [2004] NSWLEC 724 costs reference, the costs should be discounted by 25%. This is a matter which I have some familiarity as I was involved, with Brown C, in the determination of the initial costs application. My understanding is that this discounting was undertaken in that case as a discounting for that morning's claim and was not some general principle about discounting of s 69(8) reference orders. I certainly do not understand I am required to apply a 25% discount to such costs. I am satisfied therefore that the appropriate quantum of order to be made with respect to the costs of the first respondent should in fact $15,570.00. 26 The issues are a little more complex with the second respondent. 27 I have before me submissions by the applicant together with submissions by the second respondent on what should be appropriate. 28 The second respondent's costs, in its schedule filed on 20 October 2004, comprise costs for a number of expert witnesses: Dr Martens, a drainage and effluent expert; Mr Newbold, a town planner; Mr Free, a fire management expert and Mr Burcher, an ecologist. Costs for solicitor and counsel are to be added to these expert costs. 29 Material in support of the costs claimed by Dr Martens and Mr Newbold has been provided by the second respondent and is also the subject of criticism by the applicants. No material has been provided respect to the sums proposed for Mr Free and Mr Burcher. On the other hand, no criticism appears levelled at those claims in the submissions by Mr Cole. 30 I apprehend Mr Cole proposes that his Harb discount apply equally to the second respondent. I reject that for the reasons that I applied with respect to the costs of the first respondent. 31 Mr Cole's supporting material does not criticise the costs of Mr Free and Mr Burcher. As a consequence, I have not undertaken any significant or detailed consideration of them. However, I do not consider them unreasonable as the case has unfolded and I propose to adopt those two elements unamended. 32 I have carefully considered the material with respect to Mr Newbold and Dr Martens. I have considered what adjustments, if any, should be made to the costs proposed for Mr Newbold and Dr Martens in light of Mr Cole's commentary on them. I do not propose to go through either of those commentaries in detail at the present time. 33 Mr Newbold's work has been related to planning matters addressing, amongst other matters (but significantly), the question of desired future character of the area as required to be dealt with by the planning instruments - an issue has already been the subject of one interim decision in the matter and which, on the second respondent's case, as I apprehend it, remains critical in these proceedings. 34 On that basis, it will remain for further determination by me in these proceedings and I do not see that the elements of assessment in that regard will be wasted even given the significant amendments which have been granted to the applicants on 2 November. These do not, to my mind, totally discount the work already done by Mr Newbold on that matter. In many respects, the subdivision of 5 lots as now proposed retains many of the characteristics the original 5 lot subdivision proposal. 35 I have therefore concluded, acknowledging that I have applied a very crude assessment method, that, at this time, of the ~ $3,900.00 applied for for Mr Newbold, I am only prepared to allow $1,750.00. That is not say that the remainder of sum claimed is discarded, it is merely set aside in the pool for consideration if the applicants were to be unsuccessful; if there were to be some future cost application made by the second respondent and if I were prepared to propose such an order for concurrence. It is simply a question of reserved costs being carried through in these proceedings. 36 With respect to Dr Martens, similar matters of consideration arise. 37 First, Mr Cole criticised the lack of information concerning disbursements in Dr Martens account. I do not propose to involve in attempting an analysis of the interstices of such amount. This sum does not seem unreasonable for the reasons given by Dr Martens in his letter attached to the second respondent's submissions. 38 I am satisfied that a deal of Dr Marten's evidence remains relevant as it was this, coupled that of Dr Patterson, for the applicants, which brought the issue of drainage swales into play resulting in and remaining relevant to my consideration of this issue. However, I am satisfied also that the dominant portion of Dr Martens' evidence given earlier, as claimed in the second respondent's schedule, will be rendered irrelevant. I am prepared to permit $7,000.00 against his costs in lieu of ~$8750.00 claimed. 39 The past costs wasted were, as I indicated in my earlier judgment on 2 November, ones which I was satisfied should be paid on an actual costs or indemnity basis. As a consequence, I consider it inappropriate to interfere with the costs claimed for solicitor and counsel for those elements. These should therefore be allowed in the sum of $6,931.00. 40 However, with respect to the costs thrown away by the adjournment of proceedings on 8 September and the costs of preparation for and of the hearing of 2 November 2004, I had indicated that those costs were to be on an "as agreed or assessed" basis, one which is one inherently less generous than if on an indemnity basis. 41 I have considered what should be the appropriate hourly rates to be applied to those proceedings - accepting the numbers of hours that have been set out on behalf of the association. I consider that a rate identical to that charged by Mr Webber to the first respondent is an appropriate rate for the instructing solicitor. I consider that an appropriate rate for counsel appearing in these proceedings would be $300.00 per hour. Therefore, with respect to the sum of $9,427.00 in element 3 in the schedule of the second respondent, I substitute the sum of $7,500.00. 42 With respect to the hearing on 2 November, applying the rates which I have considered to be appropriate for solicitor and counsel, to allow four hours for each, results in an amount of $2,200,00 - making, on my calculation, an order in favour of the second respondent, rounded up to the nearest $10.00, of $28,500.00 in lieu of $34,700.00 claimed. 43 I propose, therefore, to seek the concurrence of the Chief Judge to the making of the orders as provided to the parties on 4 February with the sums of $11,570.00 appearing in order 2 and $28,500.00 appearing in order 3. 44 Mr Cole also raised in his submissions the question of satisfaction of those orders by way of bank guarantee to be settled at some future time. 45 The presently position is that the parties have agreed that the matter will not be set down for the hearing unless any costs orders have been resolved. 46 I simply propose to indicate this - the question of acceptance of a bank guarantee in satisfaction of costs orders is a matter for agreement or otherwise for each respondents. I do not propose to purport to direct that either of the respondents accept such a guarantee. If they choose to do so, then the matter can be set down for further hearing, only subject to necessary timetabling, after provision of that bank guarantee to each of the respondents. If either of the respondents declines to accept the bank guarantee, I do not propose to direct the matter be set down for further hearing without affording the parties an opportunity to be heard on that matter. This can be dealt with pursuant to the liberty to relist which I will give as part of the timetabling directions to follow from this decision. 47 However, it is my disposition that, as the issuing of orders creates a debt due and payable, there would be a presumption in favour of the applicants satisfying that prior to the matter being heard further. That comment is simply provided to assist parties in their discussions and is not a settled view. 48 I finally propose to make some brief comments about an issue which was raised in the costs hearing in September but which has not been dealt with in any further detail. I consider I should deal with it in anticipation. That is the question of whether or not it would appropriate, at any stage, for me to embark on consideration of obliging the applicants to lodge security for costs. 49 I do not consider that it would be appropriate or could be rendered appropriate in this class of the Court's jurisdiction for me to impose such a requirement on the applicants. Class 1 proceedings are proceedings by way of merit or administrative review and there is no presumption such as in Latoudis v Casey (1990) 170 CLR 534 that costs ordinarily follow the event. 50 The test for costs to be applied, under the new rules with respect to costs, are whether it would be fair and reasonable for costs orders to be made in favour of one party or another. In at least one case, Harb, a limited order for costs has been made in favour of the unsuccessful party to a merits appeal. 51 I do not consider that, given the significant difference between the nature of these proceedings and adversarial proceedings in other civil jurisdictions, that it could be appropriate for me to require security for costs. If the parties wish to contest this view which I am putting, I indicate that I do not consider it appropriate for me to take such matter further. Any application for security for costs should be by Notice of Motion or point of law reference to a judge.

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Cases Cited (2)

Cited By (1)