Reported Decision : 121 LGERA 152 Land and Environment Court of New South Wales CITATION : Bathurst City Council v Stamatopoulos No. 2 (Costs) [2002] NSWLEC 118 APPLICANT Bathurst City Council PARTIES : RESPONDENTS Theo Stamatopoulos and Dianne Stamatopoulos FILE NUMBER(S) : 40189 of 1999 CORAM: Cowdroy J KEY ISSUES: Costs :- LEGISLATION CITED: Land and Environment Court Act 1979, s 69 Fast Buck$ & Anor v Dudley Pastoral Company & Anor No. 2 (costs) [2002] NSWLEC 16; Latoudis v Casey (1990) 170 CLR 534; CASES CITED: Oshlack v Richmond River Council (1998) 193 CLR 72; Registrar of the Court of Appeal v Willessee and Ors (1985) 3 NSWLR 650; The King v Fletcher Ex parte Kisch (1935) 52 CLR 248; Warringah Shire Council v Phillip Franks [1999] NSWLEC 136 DATES OF HEARING: 07/06/2002 EX TEMPORE JUDGMENT DATE : 06/07/2002 APPLICANT Mr P Clay (Barrister) SOLICITORS McIntosh McPhillamy LEGAL REPRESENTATIVES: RESPONDENT Mr P Hastings QC with Mr J Robson (Barrister) SOLICITORS McPhee Kelshaw Solicitors JUDGMENT: IN THE LAND AND MATTER No. 40189/99 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 07/06/02 Bathurst City Council Applicant v Theo Stamatopoulos and Dianne Stamatopoulos Respondents JUDGMENT No. 2 (Costs) 1. By a notice of motion dated 25 March 2002 the respondents seek an order that the applicant ("the council") pay the respondents' costs. 2. Judgment in these proceedings was delivered on 13 December 2001 in which the charges of contempt made by the council were dismissed. Accordingly the respondents claim they are entitled to an order that their costs of the proceedings be paid by the council. 3. The Court has a wide discretion pursuant to s 69 of the Land and Environment Court Act 1979 in respect of awards of costs. The usual rule as discussed in Latoudis v Casey (1990) 170 CLR 534 may be summarised by saying that a successful party is ordinarily entitled to an award of costs. Such an award is not imposed by way of punishment but rather by way of compensation: see Oshlack v Richmond River Council (1998) 193 CLR 72. 4. Accordingly the respondents say that having been totally successful their costs should be paid. The council acknowledges the usual rule pertaining to an award of costs but points to various qualifications. In Latoudis at page 569 McHugh J said, "Speaking generally, before a court deprives a successful defendant in summary proceedings of his or her costs, it will be necessary for the informant to establish that the defendant unreasonably induced the informant to think that a charge could be successfully brought against the defendant or that the conduct of the defendant occasioned unnecessary expense in the institution or conduct of the proceedings." 5. The council points to various matters in respect of which it says it was justified in initiating these proceedings. In particular it points to the circumstance of the attendance of its officers on the site of the subject property during the Mount Panorama races on Sunday 14 November 1999 and of the respondents' refusal to permit access. The council also points to various findings in which the Court found that the first respondent had undertaken elaborate measures on the day in question to "beat the council". 6. The council relies upon several authorities wherein this Court and other courts have found that the conduct of the successful party in the proceedings has been such as to disentitle it to an award of costs. See for example, Registrar of the Court of Appeal v Willessee and Ors (1985) 3 NSWLR 650 at 661 per Kirby P (paras C-E); see also Fast Buck$ & Anor v Dudley Pastoral Company & Anor No. 2 (costs) [2002] NSWLEC 16; Warringah Shire Council v Phillip Franks [1999] NSWLEC 136 and The King v Fletcher Ex parte Kisch (1935) 52 CLR 248 at 259. In the last mentioned case Evatt J determined that the respondents had been at fault in the departing from their duty of fair editing. 7. In this case there are several matters to be considered. The respondents had agreed to unambiguous orders restraining the use of their property for the purposes of a restaurant and ancillary orders. On the day the subject of the charges, council officers who attended the site namely David Ross Shaw and Neil Edward Allen made observations which caused them to believe that the orders of the Court were being flagrantly disobeyed. They saw persons eating and drinking in the building containing the restaurant, on the verandah above the restaurant and on the lawn outside the restaurant. Food and drink was being served outside and there were cooking facilities set up outside the restaurant in the nature of a barbecue. There were persons wearing caps bearing the name Komatsu milling in the crowd. They observed a shade structure on the property adjoining the restaurant and they believed they observed a grandstand. 8. The Court has found that the council officers' observations concerning the grandstand were baseless. However, the Court was satisfied that in giving such evidence the council officers were mistaken and were not dishonest. The Court also found the shade structure was not in the nature of a marquee to which the orders were directed. In relation to the service of food and drink the Court accepted the evidence of the respondents and of their witnesses that the restaurant was closed, but that the residence above and the grounds outside the restaurant were being used by guests of the respondents. However these facts were not known to the council officers. From all outward appearances they were understandably of the view that the Court's orders were being breached. When they attended at the site they were asked to leave by the applicant's solicitor who was fortuitously present on that day. 9. In the circumstances the council was left in a position of believing that the orders of the Court had been breached. These proceedings were instituted and orders were made requiring the provision of affidavit evidence from all parties. The respondents did not comply with that order and the case proceeded to a hearing. By leave of the Court oral evidence was given in defence of the charges. 10. In these circumstances an opportunity was offered to the respondents on two occasions to disclose the true position concerning the events of 14 November 1999. Neither opportunity was availed of. No doubt on the race day the respondents felt no affinity towards the council officers, and were not prepared to assist them in their investigations. In the Court's view that was a mistake. Had the officers been informed of the true position and been invited to inspect, then these proceedings would probably never have been instituted. Accordingly when making its decision to initiate the prosecution, the council only had before it the observations of Messrs Shaw and Allen which clearly demonstrated a prima facie breach of the orders. After commencement, no affidavits were filed by the respondent in opposition even though orders were made by consent for this purpose. Had they been filed, the council may have been able to decide whether the prosecution should proceed. 11. For these reasons the Court finds that the respondents have largely been to blame for the institution and the continued prosecution of these proceedings. Put more simply, they have brought it upon themselves. 12. The respondents point to the unreliability of the evidence concerning the grandstand and of the marquee. The Court has found that those observations were erroneous. They are not major matters when the use of the restaurant in breach of the Court's order was the central issue. 13. Taking all these matters into account, the Court concludes that it should make no order in relation to costs of either party. The order of the Court will be the application is dismissed. 14. The costs of this application are sought by the council. As the applicant on the motion was entitled to seek costs the Court is of the view that the order which applies in relation to the principal proceedings should also apply to the costs of this motion. Orders 15. The Court Orders:- 1. The respondents' motion for costs of the proceedings be dismissed 2. The councils claim for costs of the motion be dismissed *** 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. 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