Thomas v Randwick City Council

EX TEMPORE Judgment 1The Applicant in these Class 1 proceedings seeks his costs on an indemnity basis from the First Respondent the Council. There was no need for the Second Respondent to appear. 2As identified in submissions a judge of the Court has power to make a costs order by virtue of s 23 of the Land and Environment Court Act 1979 (the Court Act). Section 4 of the Civil Procedure Act 2005 (the CP Act) applies to courts identified in Sch 1 and includes this Court. Section 98 of the CP Act grants the power to award costs including on an indemnity basis subject to the rules of a court. The relevant rules of court are set out in Pt 3 r 3.7 of the Land and Environment Court Rules 2007 (the Court Rules). The presumptive rule in Class 1 proceedings is that each party pay its own costs. 3The Applicant relied on affidavits of Mr Fahey, solicitor, dated 29 November 2011 and Mr Chilcott, Second Respondent, dated 7 October 2011. 4The Council read the affidavit of Mr Kyriaciou, Council officer, dated 13 January 2012 attaching the Council's Code of Conduct concerning inter alia declarations of non-pecuniary interests by councillors. 5Sections of the Local Government Act 1993 (the LG Act) concerning the requirements for the declaration of pecuniary interests under s 451, meeting and quorum requirements of councils in s 360, s 368 and s 371, and codes of conduct in s 440 were also handed up.

Relevant facts agreed 6The parties agree the relevant facts which are outlined in the Applicant's submission at section 4 (which I incorporate adding in additional procedural motion on 20 September 2011) as follows: 4.1 The modification application the subject of the Appeal to this Court was lodged on 2 February 2011. It was allocated DA/182/2009/B. 4.2 Council's development 'Assessment Officer' recommended approval of the application subject to certain conditions of consent. 4.3 On 26 July 2011, the modification application came before the Council on 26 July 2011 for a vote. It was allocated agenda item No CP 68/11. 4.4 Because of a declaration of one pecuniary interest and six non-pecuniary interests only 7 Councilors considered themselves eligible to vote. However, this did not constitute a quorum and no vote was taken. 4.5 A procedural motion to have the modification application agenda item CP 68/11 delegated to the Acting General Manager for determination was 'moved' and 'lost'. 4.6 By email dated 27 July 2011, the Applicant sought certain details relating to the Council's consideration of the matter and advised that the client "reserves their rights...to seek a determination and costs from a court of appropriate jurisdiction." 4.7 By letter dated 8 August 2011, Council provided a response and advised that the status of the Applicant's application was that it had "not been determined, approved or refused." 4.8 As a result the Applicant filed his application for an appeal to this Court on 29 August 2011. 4.8(a) 20 September 2011, a further procedural motion was not passed concerning delegation of matter to GM 4.9 The first directions hearing for the application was 28 September 2011. A solicitor from Marsden's Law Group for the Council attended on the first return date. The Registrar was advised Council would not take an active part in the proceedings and indicated the Marsden's would filed a notice of intention to cease to act. 4.10 Programming orders were made and the matter listed for hearing on 1 November 2011 . 4.11 On 7 October 2011, Council filed a submitting 'Appearance' and its solicitor filed a Notice of Ceasing to Act. On 10 October 2011, a resident objector, Mr. Chilcott filed a Notice of Motion seeking to be joined as a Respondent to the Application. 4.12 On its own initiative the Court relisted the matter on 11 October 2011. On that day the Court vacated its previous orders and relisted the matter for directions and the hearing of the joinder motion for 14 October 2011. 4.14 On 14 October 2011, the Court heard and granted Mr. Chilcott's Motion. The Applicant did not oppose the joinder. Revised programming orders were also made and the matter was listed for hearing on 9 December 2011. Council also then refused to produce its file other than in response to a Subpoena. 4.15 Solicitors for Mr. Chilcott subsequently raised with the Applicant the prospect of a 'Section 34 Conference'. The Applicant agreed and formally made the application for that conference. Council also consented to this application but did not attend the Conference. That conference took place on 17 November 2011. 4.16 At the Conference agreement in principle was reached with Mr. Chilcott and subsequently reduced to writing. Because of the terms of section 34, Council's agreement was required. Following correspondence its agreement was subsequently provided. 4.17 Final orders were made in accordance with the agreement reached and the hearing date vacated.