Land and Environment Court New South Wales Medium Neutral Citation: Liverpool City Council v Philip Joseph Tabone [2021] NSWLEC 3 Hearing dates: 20 January 2021 Date of orders: 20 January 2021 Decision date: 20 January 2021 Jurisdiction: Class 4 Before: Duggan J Decision: See paragraphs 26 and 27 Catchwords: PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005, r 23.8 application for inspection of land – indemnity costs Legislation Cited: Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Evidence Act 1995 Protection of the Environment Operations Act 1997 Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Liverpool City Council (Applicant) Philip Joseph Tabone (First Respondent) Maria Grace Tabone (Second Respondent) Representation: Counsel: Mr G Shapiro, solicitor (Applicant) Mr C Leggat SC (First and Second Respondents) Solicitors: Hones Lawyers (Applicant) Antunes Lawyers (First and Second Respondents) File Number(s): 2020/361516 Publication restriction: No EX TEMPORE Judgment 1. HER HONOUR: On 21 December 2020, the Applicant (the Council) filed a Summons seeking declarations and orders from the Court alleging that the First and Second Respondents (the Respondents) are using land in breach of the Environmental Planning and Assessment Act 1979 (the EP&A Act). That Summons is returnable before this Court in the usual course on 12 March 2021. 2. On 23 December 2020, the Council filed a Notice of Motion seeking orders that: 1. An order that the Applicant and its experts, agents and representatives be permitted to access any part of 10 Wolstenholme Avenue, Greendale (the Land) on at least 2 business days' notice, and not later than 5 February 2020, for the purposes of an inspection and collection of evidence, and taking of samples as necessary by the Applicant, and that the First and Second Respondents do all that is reasonably necessary to facilitate that access. 2. The First and Second Respondents are to file and serve a report(s) in relation to appropriate interim pollution, sediment/erosion control, and odour control measures, by 29 January 2020 (with any experts to be nominated under rr 31.19-31.20 of the UCPR's by Court communication in the normal manner). 3. The Applicant is to file and serve any report(s) in relation to appropriate interim pollution, sediment/erosion control, and odour control measures, by 12 February 2020 (with any experts to be nominated under rr 31.19-31.20 of the UCPR's by Court communication in the normal manner). 4. The proceedings are listed for a mention on a date suitable to the Court following 12 February 2020 for the Court to consider the making of orders in relation to appropriate interim pollution, sediment/erosion control, and odour control measures. 5. Such other or further orders as this Court sees fit. Upon the grounds contained in the affidavit of Natasha Khamas dated 21 December 2020. 1. As at the date of the hearing of this Notice of Motion the Council had not sought any interlocutory relief relating to the continued use of the land pending a final hearing in this matter. 2. From the Bar table the legal representative of the Council indicated that from Council's inspections it had been able to form the view that there were potential breaches of the Protection of the Environment Operations Act 1997 (the POEO Act) which were not the subject matter of any claim in these proceedings and that the access order was to enable two experts (not employed by the Council) to inspect the land to enable them to formulate what works, if any, should be done in the intervening period (prior to the hearing) if the Council sought to contend a breach of the POEO Act or seek interlocutory orders. 3. Evidence by way of affidavit of a council inspector together with a large lever arch folder was read by the Council on the Notice of Motion. Despite being assured that all of the material in that lever arch folder was relevant to the Notice of Motion, the Council's legal representative only identified four or five documents upon which he relied and one paragraph of the affidavit. 4. The Respondents also read an affidavit and tendered two lever arch folders of documents on the motion, largely in response to the evidence of the Council inspector. 5. The Council's submissions identified its motive for seeking an inspection of the land by the two experts retained by the Council. As identified above, such motive went to ensuring that there was no breach of the POEO Act indicating that pollution events were likely and/or to determine the nature of that may ameliorate such pollution events in the interim period between the date of filing of the Summons and the final hearing. 6. The Council indicated that it was not seeking a preliminary discovery order under Part 5 of the Uniform Civil Procedure Rules 2005 (UCPR). 7. The Council sought the orders in the Notice of Motion in the exercise of the Court's discretion pursuant to UCPR 23.8. For the purposes of the exercise of that power, section (1) makes it plain that such an order can be made: (1) For the purpose of enabling the proper determination of any matter in question in any proceedings… 1. When pressed to identify the relevant matter in question in the proceedings the proper determination of which would be enabled by the inspection sought, the Council was unable to do so. 2. Even if the Council was able to identify a relevant matter in question in the proceedings UCPR 23.8(4) limits the making of the order in the following manner: (4) The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995. 1. Section 169 of the Evidence Act 1995 provides: (1) If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders— (a) an order directing the party to comply with the request, (b) an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166, (c) an order that the evidence in relation to which the request was made is not to be admitted in evidence, (d) such order with respect to adjournment or costs as is just. 1. For the purposes of s 169 a request can be made in respect of the matters identified in s 166 of the Evidence Act which includes: (b) to permit the requesting party, adequately and in an appropriate way, to examine, test or copy the whole or a part of a specified document or thing, 1. No submission was made that such a provision did not relate to the inspection of the land as sought in the Notice of Motion. 2. Having regard to the provisions of the Evidence Act and the UCPR such provision is sufficiently broad enough to encompass the inspection of and testing of land. 3. The Council was unable to identify any request or an unreasonable refusal of such a request. 4. On the basis of the evidence before me in the hearing of this Notice of Motion and with respect to the case identified in the Summons, the Council has failed to identify the relevant matter in question for which the inspection would enable the proper determination. The Council has been premature in bringing this application where the causes of action that it refers to relating to the POEO Act or interim relief form no part of the matters in question as identified in the Summons. 5. Accordingly, the Council's application must fail as it is beyond the power to which UCPR 35.8 is directed. 6. Further, even if the Council were able to identify such a "matter in question" the Council has failed to satisfy the Court that sufficient relief is not available under s 169 of the Evidence Act. The legal representative for the Council accepted that no request had been made and therefore, the circumstances which engage the provisions of s 169 had also not been provided by the Council such that the Court would be able to form the degree of satisfaction which is required as a precondition to the exercise of the discretion under the relevant provisions of the UCPR. 7. Again, even if the Council were able to satisfy the preconditions to the exercise of the power, it would be appropriate in the exercise of the Court's discretion to dismiss the Notice of Motion. The guiding principles of the Civil Procedure Act 2005 (CP Act) make it plain that the facilitation of the just, quick and cheap resolution of the real issues in the proceedings are a matter that the Court must consider in the exercise of its discretion. In circumstances such as the present where: the matter has not yet been returned in the usual course; the use has been ongoing to Council's knowledge for many years; the Notice of Motion was brought outside the usual process (and I note without identifying any compelling urgency to warrant it being returnable before the allocated directions hearing or during the Court vacation) thereby incurring further unnecessary costs and using unnecessary Court resources; and, importantly, where no request for the inspection had been made of the Respondents prior to the filing of the Notice of Motion or the hearing. All of these factors weigh heavily against the exercise of the Court's discretion in the circumstances of this case. 8. Accordingly, the Notice of Motion will be dismissed and the matter will remain for case management on 12 March 2021 in the usual course. 9. The Respondent has sought an order for costs of this Notice of Motion on an indemnity basis. The primary reason being that the Council's application was doomed to fail for the reasons outlined above. 10. The Council accepts that the costs of the motion should be ordered to be paid by it but submits that such an order should be on the usual basis. Whilst it was accepted that the preconditions to the exercise of the discretion had not been satisfactorily established by the Council it was submitted that the exercise of discretion (generally but not specifically) would not warrant an order on an indemnity basis. 11. There is no dispute that the Council should pay the costs of the Notice of Motion that is to be dismissed. Indemnity costs may be ordered in the exercise of the Court's discretion as to costs and in which case the provisions of UCPR 42.5 operate. 12. Orders for payment of costs on an indemnity basis are generally reserved for situations where there is some special or unusual feature of the case that would justify the making of the award, something beyond the usual wins and losses that come with adversarial litigation. One such special or unusual circumstance that has been identified as sufficient to warrant indemnity costs is where a case or an application was doomed to failure. The identification of such circumstances as being special or unusual is consistent with the Guiding Principles of the CP Act in that it is only the real issues in dispute that should be the subject of applications to the Court. In this case, by failing to adequately address the preconditions to the exercise of the discretion in UCPR 23.8 the Council's application was premature and doomed to failure. Accordingly, for that reason alone in the exercise of my discretion, this is an appropriate circumstance for which costs should be ordered an indemnity basis. 13. The Court orders that: 1. The Notice of Motion filed on 23 December 2020 is dismissed; 2. The Council is ordered to pay the Respondents costs of the Notice of Motion on an indemnity basis in accordance with UCPR 42.5; and 3. The exhibits are returned. 1. The proceedings otherwise remain listed for directions hearing on 12 March 2021 at 9.15am. ********** 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. Decision last updated: 21 January 2021