Trowbridge & Anor v Ledbury & Ors

DATE OF JUDGMENT DELIVERY: 05/27/1999

APPLICANTS: Mr J B Maston (Barrister)

Solicitors: Wilshire Webb

FIRST AND SECOND RESPONDENTS: Mr T S Hale (Barrister) LEGAL REPRESENTATIVES: Solcitors: Kemp Strang

THIRD RESPONDENT: Mr A M Pickles (Barrister)

Solicitors: Mallesons Stephen Jaques

IN THE LAND AND Matter No. 40054 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 27 May 1999

John Rob Trowbridge & Sandra Mary Trowbridge Applicants v Michael B Ledbury First Respondent Michael Cashion Second Respondent North Sydney Council Third Respondent

On 21 April 1999 judgment was delivered when the application was dismissed and interlocutory orders made by Sheahan J discharged. The question of costs was reserved.

The first, second and third respondents have filed Notices of Motion seeking orders that the applicants pay their costs of the proceedings including the Notices of Motion.

The applicants concede that they are liable to pay the second respondent's costs of the proceedings except the costs of and incidental to the preparation and service of an affidavit sworn by Neil Ingham.

They also concede that they are liable for the third respondent's costs limited to (i) attending directions hearings before the Registrar; (ii) preparation of the council's bundle of documents; (iii) answering interrogatories served by the applicant; (iv) furnishing documents in answer to Notices to Produce served upon the third respondent by the applicant; (v) obtaining initial instructions in respect of those items.

Mr Hale, who appears for the first and second respondents, does not seek a separate order in respect of those respondents as they both had the same representation and were in the same interest. An appropriate order in that case is for there to be no order as to costs in regard to the first respondent.

There is no evidence or other explanation as to why the affidavit of Mr Ingham was not read. It is only because the affidavit was not read that the applicants contend there should be a special order that they are not responsible for the costs associated with that affidavit.

I indicated during argument that I considered the question of whether the costs of preparing the affidavit should be allowed was really a matter for the assessing officer. There may well be a plausible forensic reason the affidavit was not read, either because the applicants' witnesses gave evidence contrary to expectation, the particular issues which caused the affidavit to be prepared were not pursued, or some other reason. The Court proposes to leave the resolution of that issue to the assessing officer. The appropriate order is that the applicants pay the costs of the second respondent in respect of the proceedings including this Notice of Motion.

Mr Maston, who appears for the applicants, submits that the third respondent, being the council, ought to have taken only such steps in the proceedings as were necessary to place its record before the Court and make material available to the parties, but otherwise should not have adopted the position of an active contradictor, it being clear at all times that the second respondent would perform that role. In those circumstances, the third respondent should have entered a submitting appearance at the earliest opportunity ( Oshlack v Richmond River Shire Council (1998) 193 CLR 72).

It is true that, although the council called no witnesses, the presence of its legal representatives at the hearing, acting as a second contradictor to the applicants' case, occupied a significant part of the hearing time. The third respondent presented lengthy submissions, both written and oral, which supported the submissions of the second respondent.

In addition to the obiter remarks of the members of the High Court in Oshlack , the applicants rely on the decision of this Court in Timbarra Protection Coalition Inc v Ross Mining NL & Anor (1998) 98 LGERA 211.

The applicants place considerable reliance upon the observations made by Gaudron and Gummow JJ in Oshlack at 90. In support of a proposition that a local government body should not assume the position of protagonist, their Honours referred to the decision of R v Australian Broadcasting Tribunal & Ors; Ex parte Hardiman & Ors (1980) 144 CLR 13 at 35 - 36 and Australian Conservation Foundation & Ors v Forestry Commission of Tasmania & Ors (1988) 76 LGERA 381.

I raised the distinction between a tribunal, such as the Australian Broadcasting Tribunal the subject of consideration in Hardiman , and a local government authority enforcing the planning laws or defending a development consent which it had granted in Bentley & Ors v Drummoyne Council & Ors [No. 2] (unreported [1999] NSWLEC 103 5 May 1999).

In Australian Conservation Foundation Burchett J responded to a submission similar to that now put by the present applicants by saying that a party with a real interest in the issue an applicant chooses to contest is not disentitled from incurring the expense of appearing to defend the matter because someone else also appears.

There is a clear distinction between the interests of the first and second respondents, against whom direct injunctive relief was being sought, and the interest of the council in upholding its practices and procedures in relation to the performance of its statutory duties under the EPA Act.

The question is not whether one or other of the respondent parties more ably presented the case in defence. In this matter, examination of witnesses was not prolonged by repetitive questioning in cross examination, and the submissions made by the respective respondents were, to a large extent, complimentary even though some overlapping occurred.

The applicants chose the respondents and accordingly must have determined that they were each necessary parties.

In Liverpool City Council v RTA and Interlink Roads Pty Ltd [No 2] (1992) 75 LGRA 210 Cripps J accepted that government departments and instrumentalities should perhaps be more discriminating in their selection of defences than private litigants. Nonetheless, he did not consider it to be relevantly unreasonable in that case for the RTA to have an order for costs made in its favour although the other respondent appeared in the same interest. His Honour observed that the litigation was not unduly protracted by reason of the RTA and Interlink being separately represented, the interest of the two respondents were not precisely the same. The situation in the present case is not to be distinguished in any relevant way.

On 1 April 1999 the applicants' solicitors wrote a letter to the third respondent's solicitors expressing their view that council's involvement should be limited to making its records available to the Court, the applicants and the first and second respondents. Reference was made to the decision of the High Court in Oshlack . The council was invited to make its files and materials available and to enter a submitting appearance. There is no evidence of any reply to this letter. In the absence of a positive response, the applicants took no steps to seek and order that the costs of the council should be borne by it if it continued to insist upon separate representation. Although there is no established practice in this Court in that respect, it was nonetheless open for them to do it ( Packham v Minister for the Environment & Anor (1993) 80 LGERA 205 particularly at 227 and Amanda Broberg v Cessnock City Council & Ors unreported LEC40195 of 1994 27 February 1996 Bignold J).

It is difficult to perceive how its representation in the litigation in the circumstances of this case could endanger the council's impartiality upon any subsequent application to it if the applicants had been successful.

The Court is satisfied that the council had a legitimate interest to defend its position thereby justifying its participation in the litigation. The hearing was not unnecessarily prolonged by its appearance.

No special circumstances exist which would lead to the Court departing from the ordinary approach to the exercise of the Court's discretion that a successful party is entitled to an order for costs.

If the principle for departing from the normal exercise of discretion in favour of a successful party is that special circumstances have been shown to exist, then that has not been demonstrated in this case.

For all of the foregoing reasons, I propose to exercise the Court's discretion by making an order that the applicants pay the costs of the third respondent.

Issues were raised during argument about whether costs should be allowed in respect of interrogatories where the answers were not used by the interrogator. Again, as with the affidavit prepared but not read, this is an appropriate matter to be resolved by the assessing officer if necessary.

The third respondent accepts that it was not essential that it attended at the hearing seeking to vary interlocutory orders on 25 March 1999 before Sheahan J. The order for costs in its favour will be qualified to that extent.

The Court makes the following orders:- 1. No order in respect of the costs of the first respondent.

2. The applicants pay the costs of the second respondent, including the costs of the Notice of Motion dated 30 April 1999.

3. The applicants pay the costs of the third respondent, including the costs of the Notice of Motion dated 4 May 1999 but excluding any costs of appearance before Sheahan J on 25 March 1999.

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