Queanbeyan City Council v Ross Drake

Kiama Council v Grant [2006] NSWLEC 96; CASES CITED: Leichhardt Municipal Council v Anthony George Jeffrey t/as Jeffrey Brothers Funerals [1988] NSWLEC 143; One.Tel Limited v Commissioner of Taxation (2000) 101 FCR 548; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1977) 186 CLR 622

APPLICANT Mr T. To (Barrister) SOLICITORS Baker Deane & Nutt LEGAL REPRESENTATIVES: RESPONDENT Mr A. Bell (Solicitor) SOLICITORS AC Bell & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 Her Honour: These Class 4 proceedings have been commenced by the Council to enforce a s 121B Order issued under the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and sought an order that: Within 14 days, the Respondent remove all: (a) unregistered vehicles; (b) unregistered trucks; (c) vehicle wrecks; and (d) waste materials from the property constituting Lot 3 DP 222494 and known as 27 Pound Street, Queanbeyan

2 The unregistered vehicles and waste material, removal of which was sought in the s 121B Order and in these proceedings, were removed by the Respondent from his property at 27 Pound Street, Queanbeyan by 31 March 2006. This followed settlement discussions between the parties in which the Council agreed to forego its costs if all but three of 22 vehicles on the Respondent's property were removed by 8 March 2006. That settlement timetable was not complied with by the Respondent. The Council is now seeking its costs. There has been no hearing of the substantive legal issues in the case because of these events which render a hearing unnecessary. 3 In evidence, the Applicant relied on the affidavits of Peter Reynders sworn 9 January 2006, Stacey Tabitha Lawrence sworn 9 January 2006, Todd Benjamin Gillett sworn 11 January 2006, Megan Jane Gillett sworn 11 January 2006, and Andrew Heath Macgregor Herring sworn 21 April 2006. The Respondent relied on the affidavits of Ross Drake sworn 27 April 2006 and Allan Christopher Bell sworn 26 April 2006. It is clear from the evidence and the pleadings that there were 22 unregistered vehicles on the Respondent's premises together with waste material. 4 The chronology of events presented in the affidavit evidence is as follows:

· 29 January 2004 - Council received complaint about vehicles · 2 February 2004 - Council wrote to Respondent in relation to complaint · February 2005 - further complaint about vehicles received by Council · 17 February 2005 - initial inspection by the Council carried out of premises · 21 February 2005 - Council issued a Notice of Proposed Order pursuant to s121B of the Act · 7 March 2005 - Council received handwritten note from Respondent in response to Notice of Proposed Order which asked Council for more time · 9 March 2005 - Council replied and invited Respondent to submit a proposal for the removal of vehicles that would include a schedule with dates · 5 April 2005 - Council issued a further Notice of Proposed Order because the Respondent had failed to submit a proposal · 26 April 2005 - Council issued the actual Order · 4 November 2005 - Class 4 proceedings commenced · December 2005 - Council planner attended the Respondent's property for another inspection and observed vehicles still present · 13 Jan 2006 - telephone call over in Class 4 proceedings. Proceedings adjourned for further telephone call-over on 18 Jan 2006 · 8 March 2006 - date in settlement agreement for removal of unregistered vehicles from the Respondent's property · 15 March 2006 - Court made directions in relation to filing and service of pleadings · 24 March - Applicant filed pleadings · 3 April 2006 - Another inspection by Council indicates that all vehicles were removed

Council's arguments 5 The Council argued there were three bases to its claim for costs: 1. Part 15 r 7 of the Land and Environment Court Rules 1996 ("the Court Rules") applies because its claim has been satisfied. 2. The circumstances leading to the proceedings have been removed by the supervening event being the removal of the vehicles by the Respondent where it was almost certain to have succeeded if the matter had been fully tried: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1977) 186 CLR 622 as identified in [80(b)] of the judgment in Kiama Council v Grant [2006] NSWLEC 96. 3. An additional circumstance identified in [80(a)] of the judgment in Kiama which is probably an extension of Lai Qin to the circumstances of this case. Respondent's arguments 6 The Respondent's solicitor argued that from the Respondent's perspective he did not act unreasonably in the period up to 4 November 2005 when the Class 4 proceedings were commenced but was simply seeking to get legal advice about the order, the Council had delayed unreasonably in commencing the proceedings given that it thought it had a winnable case (a curious submission given that this gave the Respondent more time to rectify the situation of non-compliance with the order served in April 2006), the Council's solicitors should have made explicit in their letter concerning settlement on the basis that the Respondent remove all but three vehicles by 8 March 2006 that costs would be sought if he failed to do so. Reliance was also placed on a medical opinion from the Respondent's general practitioner dated 19 April 2006 about his current psychiatric condition and existing physical difficulties. 7 The Respondent further submitted that the compromise position reached with the Council in February 2006 whereby the Respondent would only have to remove 19 of the unregistered vehicles as opposed to 22, and would not have to dispose of the other waste in his yard constituted, in effect, a settlement with the Council. At the heart of this settlement was the removal of vehicles. Although this was not completed by the 8 March 2006, it has since been carried out in full, with the Respondent moving all 22 vehicles. This new settlement with Council in effect meant that the original order of the Council no longer had any standing. Since the Council has benefited from the compliance with this new settlement by the Respondent, awarding it costs on top of this would be inequitable. The Council should therefore not be awarded costs. Finding 8 The Court has wide discretion to award costs under s 69(2) of the Land and Environment Court Act 1979 ("the Court Act"). The Council has argued that discretion should be exercised in its favour on three bases, but the second and third bases should be considered together, in my view.

(i) Part 15 rule 7 9 Part 15 rule 7 provides: The Court may order the respondent to pay the costs of the proceedings where a respondent satisfies or causes to be satisfied the claim of the applicant after the proceedings have been commenced.

10 The Council relied on the decision of Bignold J in Leichhardt Municipal Council v Anthony George Jeffrey t/as Jeffrey Brothers Funerals [1988] NSWLEC 143 as an example of where the supervening actions of the respondent resulted in the satisfaction of the Council's claim and applied Pt 15 r7 to award costs. In this case, the provisions of the Queanbeyan LEP 1998 specify that in the residential 2(a) zone where the Respondent's property is located specified development is permitted with development consent. While "parking spaces" is one class of specified development its definition under the LEP clearly does not cover the situation which existed at the Respondent's premises where 22 vehicles were parked very close together and covering virtually all of the front and rear yards of the Respondent's premises. Given the history of this matter as identified in the chronology above it is clear that the Council's claim has been satisfied by the actions of the Respondent in removing from his property all of the unregistered vehicles and waste material located on it.

11 There is no disentitling conduct in the commencement or conduct of these proceedings on the Council's part in my view. The matters relied on by the Respondent as being his understanding and view of events as they affected him do not suggest any unreasonable or unwarranted behaviour on the Council's part. The Respondent was first notified by letter of the Council's concerns in February 2004, an inspection a year later showed no change in circumstance, the Council served two to notices of intention to issue an order during 2005 before issuing the Order in April 2005. These proceedings were commenced in November 2005. 12 The fact the Council was willing to compromise in settlement negotiations with the Respondent does not suggest it had abandoned the terms of its original order. Under the compromise the vast majority of the vehicles would have been removed. Ultimately, the Respondent removed all the vehicles from the premises. The fact the Respondent could not comply with the timetable agreed and took extra time does not suggest unreasonable behaviour on the Council's part in now seeking its costs, given the lengthy history of this matter.

(ii) Application of Lai Qin/Kiama v Grant 13 The oft quoted passage from McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625, in relation to matters where there has been no hearing on the merits, is as follows: In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs [ Latoudis v Casey (1990) 170 CLR 534]. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order [ Latoudis v Casey (1990) 170 CLR 534 at 543, 566-568]. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties [Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201]. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action [ Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201]. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council ; Ex parte Raysun Pty Ltd [[1971] QWN 13], the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission [Unreported; Federal Court of Australia; 10 February 1989] where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. Particular reliance is placed here on the passage where his Honour refers to the situation where a court can feel confident that one party would almost certainly have succeeded if the matter had been fully tried. In Kiama Preston J undertook an extensive analysis of the relevant authorities including that of Burchett J in One.Tel Limited v Commissioner of Taxation (2000) 101 FCR 548, where he refers to the situation where one party effectively surrenders to the other party and further cases where some supervening event or settlement removes the subject of the dispute and other decisions of this Court on costs where there has been no hearing of the substantive matters. In Kiama Preston J concludes at [80] that: The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits: (a) where one party effectively surrenders to the other party by: (i) discontinuing without the consent of the other party; or (ii) giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party; the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party; and (b) where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs, the proper exercise of the costs discretion will ordinarily be to make no order as to costs unless: (i) one of the parties has acted so unreasonably that the other party should obtain the costs of the action; or

(ii) even if both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried so that the party should obtain the costs of the action. 14 In this case characterising the Applicant's actions as a surrender to the Council's case is outside the circumstances identified in [80(a)] of Kiama which refers to the discontinuance of proceedings, the giving of undertakings to the Court or submitting to the Court making orders against the party in the terms substantially sought by the other party. In Kiama the parties had entered into consent orders. The precise circumstances of this case where the Respondent's actions remove the need for a hearing are not referred to in Kiama no doubt because they did not arise. 15 While I can envisage a situation where the actions of a party other than those specified in [80(a)] of Kiama can be said to be an effective surrender to the other party if that occurs it also seems likely that Pt 15 r 7 is likely to apply as I have found to be the case here. In the circumstances of this case I think the characterisation of what has occurred is more accurately that set out in [80(b)] of Kiama. The supervening event is the settlement arrived at between the parties which has resulted in all of the vehicles being removed, not just the 19 vehicles the subject of the settlement terms, and also the removal of the waste material identified in the Council's affidavits. Applying Lai Qin as set out in [80(b)] of Kiama no order as to costs will generally be made unless one party has acted unreasonably so that costs should be awarded to the other party or both have acted reasonably but one party is almost certain to have succeeded. In the circumstances of this case I think the Council would have almost certainly succeeded in these proceedings given the provisions of the Queanbeyan LEP. It is also clear that the Council acted reasonably in commencing the proceedings, gave the Respondent ample opportunity to comment on the issue of the s 121B Order and delayed the commencement of the proceedings for several months after May 2006 when the Order became effective and the Respondent was required to comply with it as a matter of law. While I accept that the Respondent may have had some medical issues to deal with, although the extent of these is unclear in relation to 2005, and the outcome of this matter from the Respondent's point of view is unfortunate, the Council has acted appropriately and should be awarded its costs.

16 I exercise my discretion under s 69(2) of the Court Act to award costs in the Council's favour for the reasons given above.

Orders 17 The Court orders that the Respondent pay the Council's costs of these proceedings and including the hearing on costs.

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