HIS HONOUR: These proceedings relate to a Notice of Motion filed on behalf of Hornsby Shire Council (the Council) seeking a costs order against the Applicant in Class 1 proceedings, Mr Xia (the Applicant), concerning a proposed development lodged by Development Application with the Council and about which the Class 1 merit proceedings were commenced on 21 February 2019 - they seeking that the Court, standing in the shoes of the Council, grant consent to the proposed development.
It is unnecessary to undertake an extensive canvassing of the process that took place in the proceedings prior to the beginning of December 2019. It is sufficient to note that, as is customary in Class 1 merit proceedings, conciliation processes were undertaken by the Court - with the conciliation conference process being terminated by O'Neill C on 3 December 2019 (there having been an earlier unsuccessful conciliation on site commencing on 21 October 2019).
One week after the conciliation conference was terminated, the matter was returned to the Registrar's list for further directions.
The matter then went to the Registrar who, on 10 December 2019, gave directions leading up to a two-day hearing to be conducted on 9 and 10 July of this year. However, and critically in the context of the complaint that is now made by the Council, the second order (after the setting down of the matter for hearing) that was made by the Registrar was that the Applicant was to file and serve any Notice of Motion seeking leave to rely on amended plans and any further documentation by 28 February 2020.
There was no necessity whatsoever during the period between the making of those orders on 10 December 2019 and 28 February 2020, which was the triggering point for engagement with further court processes, for the Council to take any further steps in these proceedings.
On the final day that was appointed for the filing and serving of any Notice of Motion for leave to rely on amended plans, Mr Briggs, the solicitor assisting the Applicant in the proceedings, sent an e-mail to the Council's solicitor attaching a draft Notice of Discontinuance. There is no dispute that, at that time, that proposed Notice of Discontinuance was provided to the Council prior to any potential obligation arising for the Council to undertake any further steps in these proceedings.
Mr Briggs' affidavit, read in these proceedings, then sets out, from [20] to [25], the steps that took place between him and the Council's solicitors concerning the proposed discontinuance of the proceedings.
In particular, I note that, on 11 March 2020, the Council's solicitor advised that the Council would not consent to discontinuance on the basis that the Council pay its own costs of the proceedings.
All of the costs of the proceedings, prior to 28 February 2020, would have been those arising in an ordinary, plain vanilla and unexceptional Class 1 appeal in this Court. There is nothing at all, in terms of r 3.7 of the Land and Environment Court Rules 2007, that demonstrates any unreasonable conduct whatsoever on behalf of Mr Briggs and his client during the period between 10 December 2019 and the first intimation that Mr Briggs' client wished to discontinue the proceedings on 28 February 2020.
I should interpose at this stage that there are a number of matters of concern to me in these proceedings.
First, the Council's written submissions were filed late, and late without explanation of or any satisfactory notice being given to my Associate prior to today. Those submissions were founded upon an alleged costs power in r 42.19 of the Uniform Civil Procedure Rules 2005 (the UCPR), a power that is expressly and explicitly excluded from being exercised in the Class 1 jurisdiction of this Court as a consequence of the operation of Sch 1 to the UCPR.
Second, although I rejected the potential to embark on this course (as the High Court tells me in Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 it would be inappropriate for me to do), I was invited, on behalf of the Council, to commence an examination of whether or not the Applicant's case would have had merit had it gone to trial.
Apart from the fact that the High Court tells me that that is an inappropriate course of conduct, it is also, had it been available, an entirely inappropriate course because it was clearly anticipated that the application which was before the Commissioner in December of 2019 for the conciliation conference purposes was anticipated, by the Applicant, to be amended if the matter was to go to substantive trial. In lieu of proceeding to amendment, the Applicant decided to discontinue the proceedings. There is nothing unreasonable in that conduct.
As a consequence, the inevitable conclusion of this Notice of Motion is that the Council's application for costs is to be rejected. There is no foundation upon which I could conclude that it was "fair and reasonable" to make any costs order whatsoever in favour of the Council.
I now turn to the submission that is made by Mr Briggs that I should make a costs order against the Council for the purposes of finalising this costs application.
The first thing to note in that regard is that, in costs' proceedings, the customary position is that the successful party in either pursuing or defending a costs application should have their costs of the costs application paid by the unsuccessful party. That is consistent with the general practice in this Court in merit matters where costs are sought. There is no basis upon which I should seek to step aside from that process in circumstances where the costs application made on behalf of the Council is entirely lacking in merit and is, as I have earlier indicated, to be rejected.
The proposition that was advanced by Mr Briggs in his submissions (there having been a hiatus in his acting for the Applicant in these proceedings, a hiatus with respect to which he does not seek a costs order on behalf of his client, although he was providing informal assistance to his client during that period) is that the Council pay the Applicant's costs on the motion from 13 April 2020 and on an indemnity basis from 22 May 2020.
The basis for seeking indemnity costs from 22 May 2020 is that on that day, by letter to the Council's solicitors, Mr Briggs invited the Council to withdraw its costs application on the basis that each party would bear its own costs. That, I assume, was put on an "open offer" basis - there being no qualification as it being a "without prejudice" offer in Mr Briggs letter of 22 May 2020.
Although there are elements in the reasons advanced by Mr Briggs as to why the Council should not have the benefit of a costs order in these proceedings - particularly with respect to the circumstances in the first paragraph of his arguments advanced, concerning Ross v Lane Cove Council (2013) NSWLEC 109 (Ross) at [1] to [11] (I certainly accept that, in Ross, Biscoe J was dealing with different circumstances where the Council had invited Mr Ross to make an application pursuant to the (then) s 96 of the Environmental Planning and Assessment Act 1979 to modify his development rather than to apply for a building certificate for works already undertaken and then that Council turned around and argued that the modification application was outside jurisdiction, those are clearly not the circumstances which here arise).
However, the other elements of what was put by Mr Briggs to the Council's solicitors on 22 May 2020 do provide, cumulatively, a proper basis of explaining why there was no proper foundation for this costs application by the Council.
In those circumstances, I am satisfied that it is appropriate not only to order that the Council pay the Applicant the Applicant's costs from 13 April 2020 when Mr Briggs commenced, in a formal sense, to act further for the Applicant but that the costs should be paid on an indemnity basis from 22 May 2020.
The Council's motion for costs is dismissed and the Council is to pay the Applicant's costs from 13 April 2020 on the ordinary basis and from 22 May 2020 on the indemnity basis.
[2]
Amendments
23 June 2020 - Comma removed between 'plain' and 'vanilla' in [9] of his Honour's judgment.
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Decision last updated: 23 June 2020