PAVEMENTS AND EXCAVATIONS PTY LIMITED v TONES AND BALLINA SHIRE COUNCIL v TONES [1991] NSWCA 221

PAVEMENTS AND EXCAVATIONS PTY LIMITED v TONES AND BALLINA SHIRE COUNCIL v TONES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and HANDLEY JJA 28 March 1991, 28 March 1991

[1991] NSWCA 221

Handley JA The proceedings before this Court comprise an appeal as of right from orders of Mr Justice Bignold refusing to award costs in a Class 4 case in the Land and Environment Court in favour of respondents to those proceedings, who were wholly successful, and an application for leave to appeal from an interlocutory order of Mr Justice Bignold in the same proceedings. The interlocutory order was made in proceedings related to interrogatories administered by the applicants for the examination of the first respondent in those proceedings the Ballina Shire Council.

I shall deal firstly with the application for leave to appeal. By s58(3) of the Land and Environment Court Act an appeal against an interlocutory order or decision of the Court only lies to this Court by leave. The proceedings in relation to the interrogatories were interlocutory proceedings and the order for costs in these proceedings was clearly interlocutory. In my opinion no grounds exist for interfering with Mr Justice Bignold's order dealing with the costs of the proceedings relating to interrogatories.

His Honour's reasons are expressly briefly, and he merely said that in his opinion the applicants were entitled to their costs of the motion in relation to the interrogatories.

Counsel appearing for the Council did not attempt to identify any error of principle which vitiated that order, nor did he attempt to demonstrate that the order was such as to be productive of some substantial injustice. In my opinion, the application for leave to appeal should be refused, and with costs.

So far as the appeal as of right is concerned, counsel for the appellant submits that Mr Justice Bignold exercised his discretion in relation to the costs of the principal proceedings on a wrong principle, and that in relation to, and in the light of the findings of fact by his Honour, the only proper result was that the Council was entitled, as a wholly successful party, to an order that the applicants pay its costs of the proceedings.