Land and Environment Court of New South Wales CITATION : Smith v Randwick City Council [No 2] [2001] NSWLEC 88 APPLICANTS Smith PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 10827 of 2000 CORAM: Cowdroy J KEY ISSUES: Costs :- Class one appeal and notice of motion for summary judgment heard simultaneously - no order for costs LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 15 r 9 Land and Environment Court Practice Direction 1993 General Steel Industries Inc. v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125; CASES CITED: MacDonald v Mosman Municipal Council [No 2] (2000) 107 LGERA 211 ; Outdoor Australia Pty Limited v Auburn Council (1996) 89 LGERA 365 DATES OF HEARING: 4/5/01 DATE OF JUDGMENT: 05/24/2001 APPLICANT Mr T Hale SC SOLICITORS Taylor Kelso LEGAL REPRESENTATIVES: RESPONDENT Mr A Thompson (Barrister) SOLICITORS Bowen & Gerathy JUDGMENT: IN THE LAND AND MATTER No. 10827 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 24/5/01 Norman and Janelle Smith Applicants v Randwick City Council Respondent JUDGMENT [No 2] 1. By notice of motion made pursuant to Part 15 r 9(b) of the Land and Environment Court Rules 1996 ("the Rules") the applicants seek to vary an order for costs ("the costs order") made in the judgment of the Court delivered on 27 April 2001 ("the judgment"). The costs order requires the applicant to pay the respondent's costs of the appeal heard on 18 April 2001. The Registrar has not signed nor sealed a minute of the final order disposing of the proceedings as provided by Pt 15 r 4 of the Rules, and the Court thereby retains jurisdiction to entertain this motion. 2. The class one proceedings were initiated by the applicants on 30 August 2000 ("the appeal") against the deemed refusal by the respondent ("the council") of an application to extend the subject development consent ("the consent"). On 5 October 2000 a notice of motion ("the motion") seeking summary judgment in the appeal was filed by the council. 3. The hearing of the motion commenced on 3 November 2000. During the course of the hearing each of the parties made opposing submissions concerning compliance with condition 10 of the consent. As a result the applicants sought an adjournment to enable expert evidence to be adduced and the Court ordered that the motion be adjourned for this purpose and to enable the motion to be heard simultaneously with the appeal. 4. The adjourned motion and the hearing of the appeal took place on 18 April 2001. For the reasons provided in the judgment of the Court the applicants' appeal was dismissed and it thereby became unnecessary to determine the motion. 5. At the close of the hearing on 18 April 2001 counsel addressed the Court upon the issue of costs. Senior counsel for the applicants submitted that the motion could not have succeeded upon the principle enunciated in General Steel Industries Inc. v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 and that accordingly the applicants should be awarded costs. In response the council denied that its claim was baseless as alleged and submitted that because the motion was adjourned at the applicants' request the costs of 3 November 2000 should be awarded in favour of the council. 6. For the reasons contained in the judgment the Court ordered that no order for costs be made in respect of the hearing of the 3 November 2000 which related to the motion. It was in relation to the appeal that the Court made the costs order. The applicants seek variation of such order. Motion for variation of costs order 7. Mr Hale SC has submitted that the Land and Environment Court Practice Direction 1993 ("the Practice Direction") should apply to the appeal and that no order for costs be made because the circumstances of the appeal were not 'exceptional'. Such direction relevantly provides as follows:- 10. Costs in Classes 1 & 2 The Practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional. 8. Pursuant to s 69(2)(a) of the Land and Environment Court Act 1979 the Court enjoys a broad discretion to award costs. The Court is not bound by the Practice Direction, although it will observe it unless exceptional circumstances exist. In Outdoor Australia Pty Limited v Auburn Council (1996) 89 LGERA 365 at 368 Pearlman J reviewed several authorities concerning the application of the Practice Direction to those instances where the proceedings, albeit commenced as class one proceedings, concerned issues of law or questions of law and fact. More recently Lloyd J in MacDonald v Mosman Municipal Council [No 2] (2000) 107 LGERA 211 at 215-216 adopted the approach of Pearlman J and determined that the Practice Direction did not apply to a notice of motion which was not part of a planning or building appeal. 9. Since each party made generalised oral submissions in relation to costs at the conclusion of the hearing on 18 April 2001 the Court inferred that the parties acknowledged that the Practice Direction had no application to both the motion and the appeal. In fact no application for the costs of the appeal, as distinct from the motion was made by either party as is now verified by the transcript. Accordingly the costs order was made under a misapprehension. 10. In response to this motion the council submits that it is entitled to the costs of one day. However council acknowledges that no exceptional circumstances could be said to exist to warrant a departure from the application of the Practice Direction in relation to the appeal. Further council concedes that it did not intend to seek an order for costs of the appeal. Orders 11. For the reasons set out above the Court considers it appropriate to vary the costs order made on 27 April 2001. The Court therefore orders that:- 1. The order for costs made on 27 April 2001 in favour of the respondent in respect of the hearing on the 18 April 2001 be vacated. 2. There be no order for costs of the applicants' class one appeal. 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.