Reported Decision : 116 LGERA 287 Land and Environment Court of New South Wales CITATION : Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council and Ors [2001] NSWLEC 200 APPLICANT Wilson on behalf of Gurrungar Environment Group PARTIES : RESPONDENTS Bourke Shire Council and Ors FILE NUMBER(S) : 10312 of 2000 CORAM: Pearlman J KEY ISSUES: Costs :- class 1 - practice direction - exceptional circumstances Land and Environment Court Act 1979 s 69(2) LEGISLATION CITED: Land and Environment Court Practice Direction 1993 par 10 Legal Profession Act 1987 Berk v Woollahra Municipal Council [No 2] (1992) 78 LGERA 180; Care and Anor v Canterbury City Council [2001] NSWLEC 169; CASES CITED: Gibson v Mosman Municipal Council [2001] NSWLEC 201; Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78; Oosthuizen v Sutherland Shire Council [2001] NSWLEC 137; Prince v North Sydney Council [2001] NSWLEC 165 DATES OF HEARING: 21/06/2001 DATE OF JUDGMENT: 08/31/2001 APPLICANT Mr P W Larkin (Barrister) SOLICITORS Environmental Defender's Office Ltd FIRST RESPONDENT Mr J F Whitehouse (Solicitor) LEGAL REPRESENTATIVES: SOLICITORS Minter Ellison SECOND AND THIRD RESPONDENT Ms S A Duggan (Barrister) SOLICITORS Bruce & Stewart JUDGMENT: IN THE LAND AND 10312 of 2000 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 31 August 2001 BRUCE WILSON ON BEHALF OF GURRUNGAR ENVIRONMENT GROUP Applicant v BOURKE SHIRE COUNCIL First Respondent HOYNES WHEELER & THORNE PTY LTD Second Respondent CLYDE AGRICULTURE LTD Third Respondent JUDGMENT 1. The issue which presently arises for determination in these class 1 proceedings is a claim for costs. The applicant seeks an order that the second and third respondents pay his costs incurred in connection with a notice of motion filed by the second and third respondents and later withdrawn. 2. The notice of motion to which I have referred ("the costs motion") sought the following orders: 1. The Applicant pay the Respondents' costs pursuant to the order made on 22 September 2000 by his Honour Mr Justice Cowdroy within 28 days of assessment. 2. The Applicant pay the Respondents' costs of this motion. Such costs to be payable immediately. 3. The background to the costs motion is as follows: (1) On 25 September 2000 (not 22 September as mentioned in the costs motion) Cowdroy J ordered the applicant to pay the costs of the first, second and third respondents thrown away by reason of an adjournment of the proceedings; (2) On 2 November 2000, the solicitors for the third respondent served a bill of costs upon the applicant; (3) On 15 December 2000, the costs motion was filed and served; (4) On 19 December 2000, the solicitors for the applicant informed the solicitors for the second and third respondents that the applicant was in receipt of a grant of legal aid effective from 9 June 2000; (5) On 22 December 2000, the applicant's solicitors invited the solicitors for the second and third respondents to withdraw the costs motion upon the basis: (a) that the order sought was contrary to the appeal and recovery process set out in the Legal Profession Act 1987; and (b) that, in consequence of the grant of legal aid, the Legal Aid Commission was liable to pay the costs the subject of the costs motion; (6) Thereafter correspondence flowed between the solicitors for the parties in which the solicitors for all three respondents sought to verify the grant of legal aid. In particular, they sought a copy of the legal aid certificate and an acknowledgment that the grant of aid had been made in the knowledge of the costs order made by Cowdroy J. The solicitors for the applicant declined to furnish the legal aid certificate, and offered to furnish the information requested about knowledge of the costs order provided the respondents undertook not to raise any question of waiver of privilege. An undertaking was proffered by the solicitors for the second and third respondents, but not in a form acceptable to the applicant's solicitors; (7) On 8 February 2001, the costs motion came on for hearing before me. There was some debate about whether or not it was misconceived to seek an order for payment 28 days after assessment, in view of the Legal Profession Act. Mr McEwen SC, appearing for the second and third respondents, submitted that, having taken the view that the assessment process could not commence until the proceedings had been finally concluded, the purpose of the order sought was to bring the process forward, not to avoid the process altogether. Ultimately, the costs motion was adjourned; (8) On 16 March 2001, the Legal Aid Commission notified the solicitors for the second and third respondents that the effective date of the grant of legal aid to the applicant was 9 June 2000 (after having earlier and mistakenly stated that the effective date was 19 December 2000): (9) On 14 May 2001, the solicitors for the second and third respondents advised the applicant's solicitors that, in view of the notification from the Legal Aid Commission, the costs motion would be withdrawn. 4. Section 69(2) of the Land and Environment Court Act 1979 confers upon this Court a wide and unfettered jurisdiction as to costs. As to costs in class 1 planning appeals (such as the present proceedings) par 10 of the Court's Practice Direction 1993 provides that the practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional. Paragraph 10A of the Practice Direction is in similar terms and applies to other classes of appeals. In Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78, it was held that par 10A could not operate to inhibit the discretion conferred upon the Court by s 69(2) of the Court Act, and should not be followed. Whether the same conclusion could be drawn in relation to par 10 remains an open question, but par 10 is declaratory of a long practice of this Court and its predecessors (the Land and Valuation Court and the Local Government Appeals Tribunal) (see Berk v Woollahra Municipal Council [No 2] (1992) 78 LGERA 180 and the cases cited at p 182). I take the view, therefore, that the principle declared by par 10 of the Practice Direction is the practice of this Court, and I proceed on the basis that exceptional circumstances need to be established to justify an award of costs in a planning or building appeal. That approach has been followed in relation to planning appeals by judges of this Court since Maurici v Chief Commissioner of State Revenue – see, for example, Prince v North Sydney Council [2001] NSWLEC 165; Care and Anor v Canterbury City Council [2001] NSWLEC 169; Oosthuizen v Sutherland Shire Council [2001] NSWLEC 137. 5. In Gibson v Mosman Municipal Council [2001] NSWLEC 201, a judgment which was handed down after I reserved my decision in this case, Talbot J was prepared to accept that par 10 of the Practice Direction has not survived the decision in Maurici v Chief Commissioner of State Revenue. I am of the opinion that this, as I have noted in par 4 remains an open question, especially since Maurici v Chief Commissioner of State Revenue was concerned with a land tax appeal, to which particular considerations might apply (see par 37 of the judgment of the Court of Appeal, and see also Prince v North Sydney Council at par 10). 6. In Gibson v Mosman Municipal Council, Talbot J was dealing with costs arising from the determination of a preliminary question of law in respect to the jurisdiction of the Court to grant consent to certain works. This case with which I am concerned, however, does not involve such a question. Rather, the question raised in the costs motion had its foundation in a procedural matter, namely, costs awarded as a consequence of an adjournment, and the costs motion sought, in effect, a direction about the payment of those costs. I distinguish Gibson v Mosman Municipal Council on this basis. 7. I turn, then, to consider if exceptional circumstances have been shown. Mr Larkin, appearing for the applicant, submitted that the circumstances were exceptional. His submission was that the second and third respondents filed the costs motion which in plain terms sought to avoid the process required for the assessment of costs under the Legal Profession Act. Furthermore, the second and third respondents persisted with the costs motion despite knowledge that the applicant had a grant of legal aid, and despite it being pointed out that the costs motion was misconceived. The second and third respondents were invited to withdraw the costs motion, but they did not do so until after the applicant had been put to the cost of meeting it, in particular, by preparing written submissions for its hearing. 8. Ms Duggan, for the second and third respondents, denied that the circumstances were exceptional. She submitted that, although the costs motion was not ideally drafted, it did not seek to avoid the costs assessment process, but instead was intended to achieve the payment of the costs to which the respondents were entitled in advance of the completion of the proceedings, and that intention was made clear by Mr McEwen at the hearing. As to the fact that the costs motion was not immediately withdrawn, Ms Duggan submitted that the second and third respondents were seeking to verify the grant of legal aid, and, in particular, to verify whether it extended to cover the costs ordered by Cowdroy J, and, far from being exceptional, this was a reasonable step for the respondents to take. 9. I am not satisfied that exceptional circumstances have been established. The solicitors for the applicant contended that the costs motion was misconceived; the solicitors for the second and third respondents considered that filing it was a proper step to take so as to achieve a departure from what they perceived as the usual practice that costs are not recoverable until the proceedings are at an end. The solicitors for the applicant were resisting divulging information they considered to be privileged in the legal aid context, and the solicitors for the second and third respondents were endeavouring to establish the precise ambit of the grant of legal aid so as to protect the respondents' position. In a word, the parties were at issue about the costs motion. But that is not an exceptional circumstance. 10. I conclude, therefore, that the fair result is that each party should bear their own costs. I therefore decline to make any order as to costs. 11. My formal orders are therefore as follows: (1) I dismiss the applicant's claim for costs incurred in connection with the notice of motion of the second and third respondents filed 15 December 2000 and subsequently withdrawn. (2) The exhibit may be returned. 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.