Pamela Jov ENRIGHT v SOUTH SYDNEY CITY COUNCIL [1994] NSWCA 91

Pamela Jovy ENRIGHT vy SOUTH SYDNEY CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, KIRBY P and POWELL JA 19 September 1994

[1994] NSWCA 91

Gleeson CJ. This is an application for leave to appeal against a decision of her Honour Justice Pearlman, the Chief Judge of the Land and Environment Court, given on 11 August 1994. The decision concerned the applicant's liability to pay costs to the respondent in respect of some proceedings brought in the Land and Environment Court. The relevant history of the matter is set out in her Honour's reasons for judgment and there is no occasion to repeat them.

The decision as to costs was a discretionary decision and I am not persuaded that there is any sufficient reason to doubt the correctness of her Honour's exercise of her discretionary power to justify the granting of leave to appeal. I would propose that the application for leave to appeal be refused.

Kirby P. I agree, but I would prefer to rest my decision upon the fact that, even if it were shown that her Honour had taken into account an irrelevant consideration in disposing of the costs, the ultimate outcome of any proceeding in this Court would almost certainly be a cost order identical to that which her Honour ordered. Therefore, an appeal, if leave were granted, would be futile. Itwould result in the same order and I would not put the parties to that inconvenience. I agree with the order proposed.

Powell JA. I agree that leave should be refused. I do not wish to add anything to what has been said by the Chief Justice and the President.

Gleeson CJ. The unsuccessful applicant should pay the costs of the respondent's application for leave to appeal.

Orders accordingly.