Land and Environment Court of New South Wales CITATION : Millerview Constructions Pty Ltd v Eurobodalla Shire Council [2001] NSWLEC 239 APPLICANT Millerview Constructions Pty Ltd PARTIES : RESPONDENT Eurobodalla Shire Council FILE NUMBER(S) : 10269 of 1998; 10730 of 1998 CORAM: Talbot J KEY ISSUES: Costs :- application for adjournment of class 1 proceedings. LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 13 r 16 CASES CITED: Megna v Drummoyne Municipal Council (Bignold J, NSWLEC, 26 May 1988, unreported) DATES OF HEARING: 11/09/2001 (final written submissions) DATE OF JUDGMENT: 10/16/2001 APPLICANT Mr P R Clay (Barrister) SOLICITORS Selby Anderson LEGAL REPRESENTATIVES: RESPONDENT Mr A Bradbury (Solicitor) SOLICITORS Minter Ellison JUDGMENT: IN THE LAND AND Matter No. 10269 of 1998; 10730 of 1998 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 16 October 2001 Millerview Constructions Pty Ltd Applicant v Eurobodalla Shire Council Respondent REASONS FOR JUDGMENT Further judgment on costs 1. The history of this matter is outlined in an earlier judgment dated 31 August 2000 in relation to costs. The issue as to costs payable in respect of a hearing on 23 February 1999 and the costs thrown away by reason of an adjournment granted on that day were reserved. 2. Written submissions have been received from the parties in respect of the outstanding issue. 3. The transcript of the decision by Commissioner Hoffman on 23 February 1999 discloses late evidence filed by Eurobodalla Shire Council ("the council") which dealt with the presence of the Yellow-bellied Glider on the site. The statement of issues had previously identified the potential of the site as habitat for the Yellow-bellied Glider. 4. On 9 February 1999 the council served a report, prepared by Michael Saxon of the National Parks and Wildlife Service, which discussed the potential of the site to comprise habitat for several threatened species, including the Yellow-bellied Glider. 5. The applicant did not serve its expert reports until 16 February 1999, being only six days prior to the commencement of the hearing. 6. On 17 February 1999 the council served a brief supplementary report by Mr Saxon. This report confirmed the existence of the Yellow-bellied Glider on the land. 7. Commissioner Hoffman observed on 23 February 1999 that "there would be potential for procedural fairness to be thwarted if the applicant had not sufficient time to reply" . 8. The Commissioner went on to say that it would also be advisable to advertise the matter to ensure any person who may otherwise take separate action could be heard by the Court on the next occasion. 9. Part 13 r 16 of the Land and Environment Court Rules 1996 ("the LEC Rules") dictates that in class 1, 2 and 3 proceedings all expert reports (including plans, diagrams and photographs) that are to be relied upon at the hearing must be served at least 14 days prior to the date fixed for hearing. 10. Although the council complied with r 16 in respect of four expert reports upon which it relied, clearly the supplementary report by Mr Saxon was served out of time. It was the content of the reports by Mr Saxon that gave rise to the applicant's application for adjournment. 11. The failure of the applicant to comply with r 16 of the LEC Rules in respect of the expert reports upon which it relied does not appear to have been a matter which the Commissioner took into account when exercising his discretion to grant the adjournment. 12. The council submits that it was not necessary to advertise the application. The comments by Commissioner Hoffman were only advisory. 13. The practice that the Court should not make an order for costs in a planning appeal, except where there are exceptional circumstances, does not arise. An application for an adjournment falls outside the ambit of either the Practice Direction 1993 (if it can be relied upon) or the established practice and policy developed in the Local Government Appeals Tribunal prior to the establishment of this Court. 14. It is not open for me to cavil with or look behind the reasons given by Commissioner Hoffman in determining the basis for the adjournment to enable me to exercise the Court's discretion in relation to an order for costs. 15. Notwithstanding what may have been the special facts which persuaded Bignold J to make an award for costs in Megna v Drummoyne Municipal Council (Bignold J, NSWLEC, 26 May 1988, unreported), nevertheless his Honour reiterated the principle that the party whose action causes an adjournment is clearly entitled to an order for costs thrown away. 16. There is no reason to depart from established principle in this case. I therefore propose to exercise the Court's discretion in accordance with the established practice by making an order for costs thrown away by the adjournment caused by the belated service of the supplementary report relating to the habitat of the Yellow-bellied Glider. 17. The Court makes the following formal orders:- (1) The respondent pay the costs thrown away by the applicant as a consequence of the adjournment granted by Commissioner Hoffman on 23 February 1999. (2) The respondent pay the applicant's further costs in relation to the written submissions in respect of the issue of costs occasioned by the adjournment. 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.