Port Stephens Council v Randell

His Honour further said at [23]:- The result is that there are now at least these three single judge decisions in this Court that conflict with the presumption said to arise in Multicon Engineering . Further, these three authorities suggest that an order for indemnity costs is only appropriate in a case where an offer of settlement has been rejected in circumstances that made the further litigation of the proceedings plainly unreasonable. To adopt this approach will provide a useful yardstick by which the question prompted by Re Wilcox and Abbott can be answered here, viz. Whether the particular facts and circumstances of this case warrant the making of an order for costs other than on a party and party basis. See also Marks v GIO Holdings Ltd (1996) 66 FCR 128.

The provisions of Pt 22 of the SC Rules (which provide for an offer of compromise) and of Pt 52 of the SC Rules (which relate to costs) do not apply to class four proceedings in this Court. Further since s 43 of the Federal Court of Australia Act 1976 (Cth) invests the Federal Court of Australia with a similar discretion to award costs as provided by s 69 of the Land and Environment Court Act 1979 ("the LEC Act"), this Court will follow the approach adopted by the Full Federal Court as explained by Einfeld J and set out above.

The question in these proceedings is whether the respondent's defence and the continuation of the proceedings after the offer was made could be said to be unreasonable, or put another way whether the respondent, properly advised should have known that he had no chance of success. Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Ors (1988) ALR 397 at 401 expressed the test of unreasonableness as follows:- In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. 8. It could not be said that the conduct of the respondent was unreasonable. Throughout the hearing there was little factual dispute between the parties. Rather the effect of a State Environmental Planning Policy upon the entitlement of the respondent to construct the dams upon the subject property was the issue of critical significance.

9. The respondent was entitled to consider that his defence was arguable and that if successful would provide a complete answer to the applicant's claim. In these circumstances, the Court does not consider that the rejection of the offer made by the applicant was unreasonable. For these reasons the Court dismisses the application for indemnity costs.

10. The respondent submits that no order for costs should be made. It submits that the determination by the Court in favour of the applicant was technical arising from the construction of the application of the relevant planning instruments. The Court finds however that the usual rule should apply namely that the unsuccessful party should be ordered to pay the costs of the successful party.

11. The Court makes the declarations and orders attached to this judgment.

The Respondent by itself, its servants or agents has carried out development on Lot 114 DP 752451 known as 36 Dunns Creek Road, Dunns Creek, being the construction of 2 dams (identified and marked "F" and "C" on Annexure No.1 hereto) without development consent required by the Environmental Planning and Assessment Act 1979 (as amended).

The Respondent by itself, its servants or agents has carried out development on Lot 114 DP 752451 known as 36 Dunns Creek Road, Dunns Creek, being the enlargement of 2 existing dams (identified and marked "A" and "B" on Annexure No.1 hereto) without development consent required by the Environmental Planning and Assessment Act 1979 (as amended).

The Respondent within four (4) calendar months from the date of approval by the Applicant of the rehabilitation plan and specification referred to in Order 4 below drain dams "F" and "C" (as identified in Annexure No.1 hereto), remove the embankments and reinstate the land form to substantially the same condition prior to the construction of those dams.

The work required to comply with Order 3 shall be carried out in accordance with a rehabilitation plan and specification. The rehabilitation plan and specification shall be submitted by the Respondent to the Applicant for approval within two (2) calendar months from the date hereof.

The Respondent within two (2) calendar months from the date hereof in respect of dams "A" and "B" (identified and marked "A" and "B" on Annexure No.1 hereto) obtain:-

(a) A report and recommendation from a qualified geotechnical engineer as to the adequacy of the dam walls (embankments) in terms of;

ii) the material used for the construction of the walls.

(b) A report of a registered surveyor showing in plan and elevation the dimensions of the spillways and dam walls (embankments).

(c) A report and recommendation from a qualified civil engineer with expertise in hydrology as to the appropriate spillway size and construction having regard to the relevant catchment discharge to dams "A" and "B".

(d) The report in (a) and (c) above and the survey in (b) above shall be delivered to the Applicant Council forthwith upon receipt.

Provided that the report referred to in Order 5(a) states that dams "A" and "B" are structurally satisfactory and require no modification, and the report in Order 5(c) confirms the adequacy of the spillways for dams "A" and "B" no further order is made as to dams "A" and "B". If the said reports or either of them recommends remedial work then the Respondent shall carry out such work within four (4) calendar months of approval by the Applicant of the work to be carried out in those reports.

The parties have liberty to apply in respect of Orders 3,4, 5 and 6.

The Respondent pay the Applicant's costs of these proceedings.

These orders be stayed for a period of twenty eight (28) days

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.

9. These orders be stayed for a period of twenty eight (28) days