McLaren v Lewis

The submissions in support of the costs application 10At the hearing, Mr Lewis' submissions for a costs order in his favour are: first, prior to Mrs McLaren applying to the Court, he had made a reasonable offer to trim the trees, which Mrs McLaren had refused; secondly, after Mrs McLaren had applied to the Court, he had sent a copy of the Council's letter to Mrs McLaren concerning the application of the tree preservation order and the unlikelihood of the Council granting consent under that order, which should have demonstrated to Mrs McLaren that there was a "near certainty that she could not win" the proceedings; thirdly, Mr Lewis had pleaded with Mrs McLaren to drop the case three days before the hearing, but Mrs McLaren had refused; fourthly, Mrs McLaren's application to the Court was vexatious and vindictive; fifthly, Mr Lewis had warned Mrs McLaren that if he had to travel to Bonny Hills for the hearing of her application he would be asking for his costs; and sixthly, Mr Lewis was in the event successful as Mrs McLaren's application was dismissed by the Court.

The evidence in defence of the costs application 11Mrs McLaren opposed Mr Lewis' application for costs and submitted the Court should not make an order for the payment of costs. Mrs McLaren relied on her affidavit of 31 August 2011. Mrs McLaren agreed that Mr Lewis, in his telephone call to her on 10 April 2011, had said that if she lost the case he would be asking her to pay his costs. She says he spoke in a very intimidating manner (para 3). Mrs McLaren denied her actions were vindictive and vexatious (para 4).

The submissions in defence of the costs application 12Mrs McLaren's arguments opposing the making of costs order are: first, there was no necessity for Mr Lewis to incur the travelling and accommodation expenses; secondly, Mrs McLaren's conduct during the proceedings was reasonable: she did not fail to provide any information or documents required in the proceedings or which were required to enable the Court to gain a proper understanding of and give proper consideration to her application under the Trees Act ; thirdly, Mrs McLaren's conduct leading up to the commencement of the proceedings was reasonable; and fourthly, Mr Lewis did not make his application for an order of costs within the time constraint of 28 days of the final orders being made.

The Court's power to order costs 13The Court has power to order costs under s 98(1) of the Civil Procedure Act 2005. However, this power is subject to the rules of court. Part 3 r 3.7 of the Land Environment Court Rules 2007 deals with costs in certain proceedings, including all proceedings in Class 2 of the Court's jurisdiction. Mrs McLaren's application to the Court under s 14B of the Trees Act is in Class 2: s 18(g) of the Land and Environment Court Act 1979 . 14Rule 3.7(2) provides: "The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances." 15Rule 3.7(3) sets out some circumstances in which the Court might consider that the making of a cost order is fair and reasonable, including that: the proceedings involve a potentially dispositive preliminary question (para (a)); a party has failed to provide or unreasonably delayed in providing information or documents required by law or necessary to enable a proper understanding and consideration of the application (para (b)); a party has acted unreasonably in the circumstances leading up to commencement of the proceedings (para (c)); a party has acted unreasonably in the conduct of the proceedings (para (d)); a party has commenced or defended the proceedings for an improper purpose (para (e)); and a party has commenced or continued to claim or maintain a defence where the claim or defence did not have reasonable prospects of success or was otherwise unreasonable (para (f)). 16The Court has also adopted under s 76 of the Land and Environment Court Act the Practice Note - Class 2 Tree Applications. Paragraph 55 of that practice note provides that: "Where a Commissioner has heard and determined a tree application, any party seeking an order for costs of the proceedings must apply for costs by notice of motion filed within 28 days of the final orders in the proceedings." 17The costs for which the Civil Procedure Act and the Land and Environment Court Rules provide are confined to money paid or liabilities incurred for professional legal services and do not include compensation for time spent by a litigant in person who is not a lawyer in preparing and conducting his case: Cachia v Hanes (1994) 179 CLR 403 at 409, 410 and 414. A litigant in person can, however, be reimbursed for certain types of out of pocket expenses incurred in and for the purposes of litigating the proceedings.

Costs claimed not "costs" within costs rules 18The costs claimed by Mr Lewis in Annexure 1 to his notice of motion are not monies paid or liabilities incurred for professional legal services. The time spent by Mr Lewis in driving to and from the hearing, in appearing at the hearing and in preparing documents are not "costs" within the meaning of the rules dealing with costs: Cachia v Hanes at 409, 410 and 414. A litigant in person is not entitled to travelling expenses as an out of pocket expense incurred to attend the hearing: Cachia v Hanes at 417. This would cover Mr Lewis' claims for mileage, accommodation and food expenses. Hence, the only expense which could be claimed by Mr Lewis as an out of pocket expense is the filing fee for his notice of motion seeking costs. However, this is not an expense incurred in the substantive proceedings brought by Mrs McLaren but rather is an expense in Mr Lewis' subsequent application for costs. 19Accordingly, Mr Lewis' motion for an order for payment of his costs must fail for the simple reason that the reimbursement for work done or expenses incurred by Mr Lewis, which he seeks in his notice of motion, are not "costs" within the meaning of s 98 of the Civil Procedure Act or r 3.7 of the Land and Environment Court Rules . As his motion for cost must fail, there is no basis for reimbursing the filing fee for a notice of motion which fails. 20Even if there were to have been costs within the meaning of the rules, I do not consider it is fair and reasonable in the circumstances to make an order for payment of costs. The usual position for proceedings under the Trees Act is that the Court will not make an order for payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances: r 3.7(2).

Not fair and reasonable to order costs 21I do not consider Mr Lewis has established circumstances in which the making of a cost order would be fair and reasonable. I do not consider the evidence establishes that Mrs McLaren acted unreasonably leading up to commencement of, in commencing or in conducting the proceedings under the Trees Act . 22The letter from the Council to Mr Lewis in which the Council said that the Council's tree preservation order applied to two of the twelve trees and that the Council would be unlikely to approve under its tree preservation order either ornamental shaping or pruning to enhance a view does not make Mrs McLaren's application to the Court under the Trees Act unreasonable. The Trees Act provides for a different means of obtaining approval for removal or pruning of trees. With the introduction of Pt 2A of the Trees Act , the Court also has power to approve the pruning of hedges which severely restrict views. The two regimes - the Council's tree preservation order and the Trees Act - are different. It is not necessarily unreasonable to seek to invoke the latter in circumstances where the former may not have reasonable prospects of success. 23I do not consider the evidence has established that Mrs McLaren's bringing of an application under the Trees Act was vexatious or vindictive. Having brought the application, Mrs McLaren was entitled to have it heard by the Court. I do not consider it vexatious or vindictive to not acquiesce to Mr Lewis' plea that the case be dropped before Mrs McLaren's application had even been heard. The fact that Mr Lewis would need to travel to the hearing for a longer distance or time than might otherwise be the case, because he is an interstate owner, is not a reason why Mrs McLaren should have dropped the case and not have the Court hear her application. 24The fact that Mrs McLaren was ultimately unsuccessful in her application under the Trees Act is not sufficient in itself. Mr Lewis' bare warnings without substantiation by reference to evidence in the proceedings or reasoning, given only a few days before the hearing, that he considered Mrs McLaren would lose, that she should drop the case but if she didn't drop the case, he would be asking for her to pay his costs, are also not sufficient in the circumstances. 25For these reasons, Mr Lewis' notice of motion applying for an order for costs should be dismissed. Mrs McLaren does not seek her costs of the motion.

ORDERS Accordingly, the Court orders:

1. Mr Lewis' notice of motion filed 25 July 2011 is dismissed.
2. There is no order as to costs of and in relation to that notice of motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 October 2011