Rockdale City Council v Payne and Anor [2000] NSWLEC 115

Land and Environment Court of New South Wales

CITATION : Rockdale City Council v Payne and Anor [2000] NSWLEC 115 APPLICANT Rockdale City Council PARTIES : RESPONDENTS Payne and Anor FILE NUMBER(S) : 40059 of 1999 CORAM: Pearlman J KEY ISSUES: Costs :- no hearing on the merits - reasonableness of parties conduct LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B Land and Environment Court Rules 1996 pt 15 r 7 CASES CITED: Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 DATES OF HEARING: 03/05/2000 EX TEMPORE 05/03/2000 JUDGMENT DATE :

APPLICANT Mr C J Leggat (Barrister) SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT Mr J E Robson (Barrister) SOLICITORS Martin L Payne

JUDGMENT:

IN THE LAND AND 40059 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 3 May 2000

ROCKDALE CITY COUNCIL Applicant v MARTIN PAYNE and LYNN LOVEDAY Respondent

JUDGMENT

1. This is an application for costs made by Rockdale City Council

2. The class four proceedings were commenced by an application dated 15 March 1999 and filed in the Court on 16 March 1999. They were ultimately settled by consent orders on 7 June 1999.

3. The proceedings, by reason of the consent orders, did not result in a hearing on the merits. In those circumstances the decision of the High Court in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 is pertinent. McHugh J at p 625 set out the following approach which I am bound to follow. He said: If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the Court will make no order as to the cost of the proceedings.